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Bancroft- Whitney Co. 

Harry M. Wier & Co. 

204 North Broadway 

LOS ANGELES 




UNIVERSITY 

OF CALIFORNIA 

LOS ANGELES 



SCHOOL OF LAW 
LIBRARY 



A TREATISE 



ON THE LAW OF 



EVIDENCE IN CRIMINAL ISSUES 



BY 



FRANCIS WHARTON, LL. D. 

AUTHOR OF A TREATISE ON THE CRIMINAL LAW OF THE UNITED STATES, 
A TREATISE ON THE CONFLICT OF LAWS, ETa 



TENTH EDITION BY 



HON. 0. N. HILTON 



OF THE DENVER BAR 



Vol. II. 



Rochester, N. Y. 
THE LAWYERS CO-OPERATIVE PUBLISHING COMPANY 

1912 



7 



\ 






Entered according to Act of Congress, in the year 1846, by 

JAMES KAY, JR., AND BROTHER. 

in ine Office of the Clerk of the District Court of the United States, in and 

for the Eastern District of Pennsylvania. 

Entered according to Act of Congress, in the year 1852, by 

JAMES KAY, JR.. AND BROTHER, 

in the Office of the Clerli of the District Court of the United States, in and 

for the Eastern District of Pennsylvania. 



Entered according to Act of Cougress. in the year 1855, by 

KAY AND BROTHER. 

ja the Office of the Clerk of the District Court of the United States, in and 

for the Eastern District of Pennsylvania. 

Entered according to Act of Congress, in the year 1857. by 

KAY AND BROTHER, 

in the Office of the Clerk of the District Court of the United States, in and 

for the Eastern District of Pennsylvania. 

Entered according to Act of Congress, in the year 1861, by 

KAY AND BROTHER, 

in the Office of the Clerk of the District Court of the United States, in and 

for the Eastern District of Pennsylvania. 

Entered according to Act of Congress, in the year 186S, by 

KAY AND BROTHER. 

in the Office of the Clerk of the District Court of the United States, in and 

for the Eastern District of Pennsylvania. 



Entered according to Act of Congress, in the year 1874, by 

KAY AND BROTHER, 
in the Office of the Librarian of Congress, at Washington. 

Entered according to Act of Congress, in the year 1880. by 

FRANCIS WHARTON, 
in the Office of the Librarian of Congress, at Washington. 

Entered according to Act of Congress, in the year 1884, by 

FRANCIS WHARTON, 
in the Office of the Librarian of Congress, at Washington. 

Copyright. 1912, 

by 

THE LAWYERS CO-OPERATIVE PUBLISHING COMPANY. 



CONTENTS. 



YOLUME II. 

(FOR CONTENTS OF VOLUiME I. SEE THAT VOLUME.) 

CHAPTER X. 

DEMONSTRATIVE EVIDENCE. 

§ S18a. In general 1071 

518b. Profert of person, showing age, identitj', wounds, etc. . . 1073 

518c. Objects illustrating offense 1074 

518d. Instruments of the crime 1075 

518e. Articles traced to the accused or connected with the of- 
fense, when admissible 1075 

518f. Demonstrative evidence illegallj' obtained, not admis- 
sible in United States courts 1076 

518g. Demonstrative evidence not excluded in state courts 

by method of obtaining it 1078 

518h. Admissibility of evidence obtained through art and 

science 1078 

518i. Photographs lOSO 

518j. Photographs, continued 1081 

518k. Photographs, continued 1083 

5181. Photographs; X-ray photographs 1085 

518m. Photographs in rogues' gallery 1086 

CHAPTER XI. 

DOCUMENTS. 

I. General Considerations. 

§ 519. Definition of the term "document" 1090 

520. Pencil writing sufficient 10'^ 1 

(iii) 



IV CONTENTS. 

§ 521. Production of documents ; reference to other docu- 
ments ; criminating documents 1091 

II. Statutes ; Legislative Journals ; Executive Documents, etc. 
§ 522. Recitals in public statutes 1093 

523. Recitals in private statutes bind only parties thereto . . 1094 
523a. Recitals in statutes, vi^hen directory and when conclusive 1094 

524. Journals of legislature admissible 1095 

525. Executive documents as proof 1095 

525a. Judicial acts and proceedings 1096 

III. Nonjudicial Registries and Records. 

§ 526. Official registry receivable in evidence 1098 

527. Records of public corporations admissible 1099 

527a. Documents evidencing official acts in general 1099 

527c. Certificates of copies and transcripts of records 1110 

527d. Private writings and publications as documentary evi- 
dence 1 102 

527e. Admissibility of entries in miscellaneous records 1105 

528. Books and registeries kept by public institutions admis- 

sible 1107 

529. Log book admissible under act of Congres!^ 1108 

IV. Records and Registries of Birth, Marriage, and Death. 

§ 530. When duly kept, marriage and baptismal registries are 

admissible to prove facts 1 108 

531. Admissible also when kept by deceased persons in the 

course of their business 1110 

532. Registry only proves facts that it was the writer's duty 

to record 1110 

533. Entries must be first-hand and prompt 1111 

534. Certificate at common law inadmissible 1112 

535. Copies inadmissible 1112 

536. Family records admissible to prove family events 1113 

536a. Weight of documents as testimony 1114 

V. Books of History and Science ; Maps. 

§ 537. Approved books of history and geography by deceased 

authors receivable 1114 

537a. Plats, diagrams, etc., as illustrating testimony 1116 

538. Books of inductive science not usually admissible 1117 

539. Books of exact science 1121 

539a. Testimonial uses of scientific books 1123 

VI. Official Publications and Public Documents. 

§ 540. Distinction between ofiicial publications and those which 

concern private individuals 1 125 

541. Newspapers admissible to show certain facts 1126 

542. But not generally for other purposes 1127 



CONTENTS. V 

§ 543. Knowledge of certain facts published in newspapers 

may be proved inferentially 1127 

VII. Pictures and Photographs. 

§ 544. Photographs as primary evidence 1 128 

544a. Photographs as illustrating testimony 1130 

545. Relevancy of documents and photographs 1131 

VIII. Proof of the Execution of Documents. 

§ 546. Character of proof necessary to show execution of 

document 1132 

547. Proof of ancient documents 1 137 

548. Ancient document may be verified by expert 1140 

IX. Proof of Handwriting. 

§ 549. Handwriting established by the writer himself or his 

admissions 1 140 

550. Specimens prepared during the trial 1141 

551. Qualifications of the witness who saw the writing made 1143 

552. Qualifications of witness by showing familiarity with tlie 

handwriting 114.S 

553. Burden of proof as to genuineness of handwriting .... 1146 

554. Testing the witness's qualifications on cross-examination 1147 

555. Proof by comparison not admitted at common law .... 1148 

556. Comparison with writings properly in evidence 1148 

557. Writings admissible as a basis of comparison 1149 

558. Standards of comparison must l)e genuine 1151 

559. Admissibility of expert testimony 1151 

560. Comparison by expert ; ancient writings 1153 

561. Photographers' testimony as to handwriting 1154 

562. Cross-examination of experts 1 154 

563. Considerations in weighing expert testimony 11.'5 

X. Inspection of Documents by Order of Court. 

§ 564. Production of documents ; materiality 1156 

564a. Inspection of minutes of grand jury 1 157 

565. Custody of documents 1157 

566. Production of criminatory documents will not be com- 

pelled ll.^S 

567. Documents may be examined by interpreters and experts 1159 

568. Evidentiary efifect of documentary evidence 1159 

569. Supplementing documents with parol testimony 1160 

CHAPTER XII. 

JUDGMENTS AND JUDICIAL RECORDS. 

I. Binding Effect of Judgments. 

§ 570. Evidentiary character of judgments ; general considera- 
tions 1165 



VI CONTEXTS. 

§ 570a. Double aspects of criminal offenses; acquittal as a bar 1167 
570b. Double aspects of criminal offenses continued ; acquittal, 

when not a bar 1169 

S70c. When judgment in criminal action is the basis of the 

civil suit 1 172 

570d. Evidentiary effect of criminal judgment in civil action 1173 

571. Jurisdiction and regularity of proceedings prerequisite 

to admissibility of judgment 1175 

572. Discharge on preliminary proceedings not conclusive .. 1176 

573. Discharge on nolle prosequi is not a bar 1176 

574. Verdict of acquittal operates as a bar 1178 

575. Criminal prosecution not barred by pendency of civil 

action ; mitigation 1179 

576. Judgments of military, consular, and miner's courts .... 1181 
la. Jeopardy. 

§ 576a. Jurisdiction of court 1183 

577. Conclusiveness of a judgment on a plea of nolo con- 

tendere 1 185 

578. Identity of offenses as constituting a bar 1185 

579. Acquittal on a defective indictment is no bar; exception 1188 

580. Conviction on one criminal aspect of an offense is a bar 

to conviction on the other 1191 

581. Successive prosecutions under liquor laws 1194 

582. Acquittal on plea in abatement 1194 

582a. On plea of guilty 1195 

582b. Discharge of jury without verdict 1195 

582c. Acquittal on one of several counts of the indictment .. 1198 

583. Acquittal by reason of variance no bar 1199 

583a. Definition 1199 

583b. Essentials to sustain the plea 1201 

583c. In homicide ; general rule 1205 

583d. In homicide; conclusiveness of acquittal or conviction 

on reversal of judgment 1206 

583e. Inclusion of degrees in homicide 1210 

584. Acquittal of the minor offense as a bar to a subsequent 

indictment 1215 

585. When acquittal of the minor does not bar prosecution 

for the major offense 1217 

586. Conviction on the major as a bar to prosecution on the 

minor offense, or vice versa 1220 

587. Where two are simultaneously killed, a prosecution for 

killing one does not bar a prosecution for killing the 

other 1222 

S87a. Offenses against dift'erent sovereignties, arising out of 

the same act 1225 



CONTENTS. Vll 

I 588. Prosecution for stealing from A does not bar prosecu- 
tion for stealing from B by the same act ; exception . . 1228 

589. Offenses continuing through periods of time 1230 

590. On trial for battery, prosecution for prior simultaneous 

battery of another is a bar 1231 

591. Judgment on successive offenses 1232 

592. Question, how raised 1233 

593. Parol evidence admissible to prove identity 1234 

II. When Judgment may be Impeached. 

§ 594. Collateral impeachment of j udgment 1235 

595. Impeachment of judgment for fraud 1236 

596. Impeachment of judgment for want of jurisdiction .... 1237 
596a. When a conviction of crime may be impeached 1237 

III. Administration and Probate. 

§ 597. Letters of administration as prima facie proof of facts 1238 

598. Probate of will as prima facie proof 1238 

599. Inquisition of lunacy prima facie proof 1239 

IV. Judgments in Rem. 

§ 600. Effect of judgments in rem in criminal cases 1239 

V. Judgments Viewed Evidentially. 

§ 601. Judgments as evidence of prior conviction 1240 

602. Judgments of conviction of principal, evidence against 

accessory 1243 

602a. Judgments as evidence to establish facts 1244 

603. To prove judgment, record must be complete 1245 

604. Journals of court admissible to prove actions of court 1247 

605. Docket entries not admissible when full record can be 

had 1248 

606. When ancient documents may be proved in fragments 1248 

607. When portions of a record may be admitted as evidence 1248 

608. Portions of records must be complete in themselves. . . . 1249 

609. When verdict is admissible as an evidentiary fact .... 1250 

610. When portions of ancient records may be received in 

evidence 1250 

611. Return of officer as evidence of facts 1251 

612. Return of execution as evidence of insolvency 1252 

VI. Records as Admissions. 

§ 613. Judgment as evidence of an admission or confession . . 1252 

614. Conclusive effect of an officer's return on a writ 1253 

615. Pleadings filed in civil actions as evidence of admission; 

exception 1253 

616. Admission by demurrer 1254 

617. Binding effect of official certificates 1255 



viii CONTEXTS. 

CHAPTER XIII. 
MODIFICATION OF DOCUMENTS BY PAROL. 

§ 620. Documents not to be varied by parol 1256 

621. But parol evidence admissible to identify and distinguish 

document 1258 



CHAPTER XIV. 
CONFESSIONS. 

General Ch.^racteristics. 

§ 622. Definition 1265 

622a. Confessions distinguished from admissions 1266 

622b. Confession ; what it excludes 1266 

622c. Judicial confessions; quasi judicial confessions 1274 

622d. Confessions of third persons not admissible 1282 

622e. Reasons for exclusion 1284 

622f . Method of obtaining 1288 

622g. True confession not excluded because invohmtary .... 1291 

622h. Practice on admission 1294 

622j. Burden of proof on admissibility; character of evidence 1295 

622k. Burden of proof ; presumptions 130O 

6221. Discretion of judge; quantum of proof 1302 

623. Confessions, strictly speaking, are not evidence 1304 

624. A confession must relate to past or present conditions . . 1304 

625. Extrajudicial confessions prima facie proof only 1304 

626. Intention a necessary basis to a confession 1305 

627. Self-disserving confession of guilt 1307 

628. Theoretically, a confession is deducted ; an admission 

inducted 1308 

629. Identification of accused 1309 

630. Medium through which the confession is transmitted . . 1310 

631. General rule as to admissibility 1310 

631a. Definition of "voluntary" as applied to confessions .... 1311 

632. Admissibility distinguished from sufficiency 1312 

633. Corpus delicti and corroboration 1312 

634. Sufficiency of corroboration 1315 

635. Credibility of confessions 1317 

636. Mental capacity at the time of confession 1319 

636a. Incomplete control of faculties at time of confession . . 1321 

637. Confessions in marital crimes 1322 



CONTENTS. IX 

II. Judicial Confessions. 

§ 638. Conclusiveness of 1323 

639. Plea in abatement as a judicial confession 1327 

640. Admissions by pleadings 1327 

641. Answers under oath, as admissions 1328 

642. Admissions in court process 1328 

III. Written Confessions. 

§ 643. Generally 1328 

644. Letters 1330 

645. Telegrams 1331 

645a. Magistrate's report 1331 

645b. Parol evidence of written confession; when admissible 1332 

IV. Admissibility of Confessions as Determined p.y Threats or 
Promises. 

§ 645c. Voluntary character of confessions 1333 

646. Confession excluded because of threats 1334 

646a. Threats ; sweat-box confessions 1338 

646b. Threats ; adjuration 1339 

646c. Threats to prosecute 1340 

646d. Character of threats that render a confession involun- 
tary 1341 

646e. Promise in general 1342 

647. Mere adjuration to speak the truth does not exclude . . 1344 

648. Representing that concealment is folly does not exclude 1345 

649. Confessions to persons in authority 1346 

650. Persons in authority 1347 

650a. Particular relations constituting persons in authority . . 1348 

651. Rule in earlier English cases 1349 

651a. To magistrates, police officers, etc 1351 

652. By servant to master 1352 

652a. To sundry authorities 1353 

652b. Made in the presence of persons in authority 1355 

653. Condition of party confessing 1355 

653a. Induced by hope or fear 1356 

654. Advice 1358 

655. Expectation of compromise or mitigation 1360 

656. Of an accomplice 1361 

657. Collateral inducements to confess 1362 

658. Issue is whether the influence applied was such as to 

induce a false statement 1364 

659. Confessions made under assurances of secrecy are ad- 

missible 1366 

660. Spiritual inducements 1366 

661. Under duress 1367 

662. When in custody 1369 



X CONTENTS. 

§ 663. In answer to questions assuming guilt 1370 

664. Under oath 1371 

665. Confession involuntary when answers are given under 

compulsion 1375 

666. English practice on preliminary examination 1375 

668. Confession of accused, where compelled to answer 

under oath 1377 

669. Confession of accused, where voluntary, under oath . . 1377 

670. Confessions obtained by trick, artifice, or deception . . . 1378 

671. Where inducement is not held out directly to accused 1382 

672. Confession in presence of party in authority 1383 

673. Apparent authoritative influence is ground for exclusion 1383 

674. Construction of expressions tending to elicit a false 

confession 1384 

V. Voluntary Character and Competency Generally. 

§ 674a. Voluntary character question for the court 1384 

675. During sleep and prayer 1385 

676. During intoxication 1386 

676a. By children 1387 

676b. Of different offense 138S 

676c. Caution as affecting character of the confession 1388 

VI. How Far Original Improper Influence Vitiates Subsequent Co.v- 

FESSIONS. 

§ 677. Confession subsequent to an involuntary confession ; 

burden of proof 1390 

677a. Inculpatory facts discovered through inadmissible con- 
fessions 1395 

VII. How Far Extraneous Facts Reached through an Inadmissible 
Confession may be Receh'ed. 

§ 678. Admissibility of inculpatory facts 1398 

VIII. Admissions by Silence or Conduct. 

§ 678a. Admissions are not confessions 1400 

678b. Silence as consent 1401 

679. Silence as admission 1403 

680. Circumstances under which the accusation is made 1406 

681. Silence where statute permits accused to testify 1411 

682. Letters in possession of accused 1411 

683. Admissions by conduct 1412 

683a. Admissions ; questions of law and fact 1413 

IX. What Admissions may Prove. 

§ 684. Admissions to prove contents of writings 1415 

685. Confessions not excluded because accused is present . . 1415 

686. Admission of marriage 1416 

687. Admissions not evidence of record facts 1416 



CONTENTS. XI 

X. How Confessions are to be Construed. 

§ 688. Entire confession must be proved 1416 

XI. How Admissibility of Confessions is to be Determined. 

§ 689. The character of the confession is a question for the 

court 1418 

689a. Confessions ; voluntary character to be decided by the 

judge 1420 

XIa. Weight of Confessions. 

§ 689b. Weight and conclusiveness 1424 

XII. Self-serving Declarations 

§ 690. Self-serving declarations inadmissible 1425 

691. Declarations as res gesta 1426 

692. Accused may show capacity in which he was acting . . . 1428 

693. Accused's declarations as to his condition 1428 

694. Weight of self-serving declarations 1428 

XIII. Admissions of Agents. 

§ 695. When admissions of agent bind principal 1429 

696. Admissions of agent in cases of criminal negligence . . 1429 

697. Admissions of attorneys of record 1430 

XIV. Admissions of Co-Conspirators. 

§ 698. When admissible against others than the confessor .... 1430 

698a. Order of testimony in conspiracy 1435 

699. Declarations not admissible after the conspiracy is at 

an end 1435 

700. Rule not affected by parties being codefendants 1437 

700a. Decoy not a co-conspirator 1438 

701. Form of prosecution not material 1438 

702. Principal's acts admissible against accessory 1438 

703. Declarations of co-conspirators in each other's favor . . 1439 
XV. General Principles of Confessions. 

§ 704. General conclusions 1439 

705. General principles of the law of confessions 1441 



CHAPTER XV. 
PRESUMPTIONS. 

I. General Considerations. 

§ 707. Presumptions of law; definition; classes 1446 

708. Classifications 1446 

709. Presumptions not known to the Roman law 1446 

710. Origin of present classifications 1447 

711. Decrease of irrebuttable presumptions 1449 

712. Presumptions in modern Roman law 1450 



j CONTENTS. 

§ 713. Modern classification in our own law 1451 

714. Presumptions of law and presur-iptions of fact 1452 

715. Statute may declare that certain facts constitute pre- 

sumptions of law 1454 

715a. Statutory presumptions ; constitutionality 1455 

716. Ambiguity of terms 1457 

II. Psychological Presumptions. 

§ 717. Motives 1458 

718. Presumption of innocence 1458 

719. Confession and avoidance 1459 

719a. Presumptions of innocence not applicable to civil actions 1459 

720. Measure of proof to overcome presumptions 1460 

721. Major and minor offense 1461 

722. Inferences from facts 1461 

723. All persons presumed to know the law 1463 

724. Knowledge admissible to prove intent 1464 

725. Knowledge of facts a presumption of fact 1465 

726. Presumption against suicide 1466 

727. Presumption of good faith in business relations 1466 

728. Presumptions applied to documents 1467 

729. Presumption of sanity 1467 

730. Insanity presumed to continue 1469 

731. Insanity; how shown; inquisition 1470 

732. Presumption of prudence in avoiding danger 1471 

733. Presumption of supremacy of husband 1473 

734. Presumption that probable consequences of an act are 

intended 1475 

735. Process is one of logic 1476 

736. I llustrations of rule 1476 

737. Roman law to the same effect 1478 

738. Malice not to be arbitrarily presumed from killing .... 1478 

739. Nor from other hurtful act 1480 

740. Combination of intentions no defense 1482 

741. Presumptions arising from mutilation of documents . . 1483 

742. Forging evidence gives rise to prejudicial inferences .. 1485 

743. With a vieW to self-exculpation 1485 

744. With intent of injuring others 1486 

745. For speculative or moral end 1487 

746. But forgery of evidence is not conclusive of guilt 1488 

747. Presumption varies with case 1490 

748. Suppression or obstruction of evidence 1490 

749. Inference when evidence is withheld 1493 

750. Inferences from attempts to escape 1494 

751. Inference from actions and conduct of accused 1497 

752. Evidence explaining flight 1498 



CONTENTS. J^^lll 

§ 753. Inferences from antecedent preparations 1499 

754. Acts to ward off suspicion 1501 

755. Such proof is open to rebuttal 1501 

756. Defendant's declarations of intent and threats admis- 

sible for prosecution 1503 

757. Deceased's threats admissible for defense 1505 

758. Inferences from possession of stolen goods 1508 

759. Possession must be recent 1511 

760. Inferences where property possesses identifying marks 1511 

761. Accused's explanation of possession 1512 

762. Inferences in embezzlement and murder 1514 

763. Inferences in burglary 1515 

III. Inferences from Mechanism of Crime. 

§ 764. Inference from instrument used 1515 

765. Inference from condition of weapon 1521 

766. Inference from position of weapon 1522 

767. Inference from condition of dress 1522 

768. Inference from ownership of weapon 1524 

769. Inference from wound 1524 

770. Inference from powder marks on body 152o 

771. Inference from direction of wound 1525 

772. Inferences of skill from wound 1526 

773. Inferences from left-handedness 1527 

774. Adaptation of instrument to wound 1527 

775. Inference from number and location of wounds 1528 

776. Inferences from other indications on injured party 1528 

ni. Inference from blood stains 1529 

777a. Human blood cannot be distinguished beyond a reason- 
able doubt from other blood 1530 

778. Collateral inferences 1532 

779. Inference from things adhering to weapon 1535 

780. Indications as to whether marks on body were after 

death 1536 

781. Indications whether wounds were homicidal or suicidal 1537 

782. Inferences in hanging 1539 

783. Inferences in drowning 1540 

783a. Physical experiments as a basis for inferences 1541 

IV. Inferences from Liability to Attack. 

§ 784. Rapacity, old grudge, jealousy 1542 

V. Distinctive Inferences in Marital Homicides. 

§ 785. Inferences from marital crimes 1544 

786. Inferences from ill-treatment of wife by husband 1545 

VI. Distinctive Inferences in Poisoning. 

§ 787. Exact demonstration not required 1546 



xiv CONTENTS. 

§ 788. Proof of poison in remains should not be received with- 
out proof of identity of remains 1548 

789. Inference from possession of poison by defendant 1549 

790. Inference from position of deceased 1549 

791. Inf erer.ces from conduct 1550 

792. Duration of working of poison 1551 

793. Duration of sickness as indicating poison 1552 

794. Inference of malice in poisoning 1552 

VII. Inferences from Extrinsic Indicatory Proof. 

§ 795. In general 1553 

796. Inferences from footprints and other marks on soil .... 1553 

191. Place of crime and jury view 1555 

798. Similar inferences in other cases 1556 

799. Inference from inculpatory instruments 1557 

VIII. Physical Presumptions. 

g 800. Infants presumed incapable of matrimony 1557 

801. Infants presumed incapable of crime 1558 

802. Identity inferable from name 1559 

803. Presumption of continuance of appearance and voice . . 1559 

804. Cautions in applying this inference to deceased persons 1561 

805. Inference as to photographs 1563 

806. Identification dependent upon opportunities of observa- 

tion and accuracy of memory 1564 

807. Comparative weight of opinions 1566 

808. Testing witness's memory as to identity of person .... 1566 

809. Presumption of dealh after unexplained absence of 
seven years 1567 

810. Presumption of continuance of life 1568 

811. Inference as to date of death of absent person 1569 

812. Inference as to fact of death 1570 

813. Letters testamentary not collaterally proof of death . . . 1572 

814. Death without issue 1572 

815. Presumption of loss of ship from lapse of time 1572 

IX. Presumptions of Uniformity and Continuance. 

§ 816. Presumption of continuance of existing conditions .... 15/3 

817. Residence presumed to be continuous 1577 

818. Occupancy presumed to be continuous 1577 

819. Habits presumed to be continuous 1578 

820. Marriage presumed to continue 1579 

821. Presumption as to solvency or insolvency 1580 

822. Presumptions as to foreign laws and foreign judgments 1580 

823. Constancy of nature presumed 1580 

824. Physical sequences to be presumed 1581 

825. Presumptions from habits of animals 1582 

826. Inferences as to conduct of men in masses 1583 



CONTENTS. XV 

X. Presumptions of Regularity. 

§ 827. Marriage presumed to have been regular 1584 

827a. Presumption of continuance of illicit relations 1586 

828. Legitimacy a presumption 1587 

829. Presumption as to judicial records 1589 

830. Presumption in support of verdict 1590 

831. Presumption of regularity as to legislative proceedings 1591' 

832. Presumption as to execution of documents 1591 

833. Presumption of regularity as to appointment of and 

performance of duties by an officer 1591 

834. Presumption as to professional status 1594 

835. Presumption of regularity attaches to administrative 

or judicial officers 1595 

836. Burden of proof is on party charging public officer with 

misconduct 1596 

836a. Authority for corporate or official act presumed 1597 

837. Mailing letter prima facie proof of delivery 1597 

838. Presumption as to time of delivery of letter 1599 

839. Presumption from postmark 1599 

840. Presumption from manner of delivery 1599 

841. Presumption of genuineness of answer to a letter mailed 1600 

842. Presumption as to telegrams 1600 

843. Presumption from method of mailing letter 1601 

XI. Distinctive Inferences in Forgery. 

§ 844. Genuineness of handwriting 1601 

845. Opinion of writer 1601 

846. Opinion of those who know his hand 1601 

847. Opinion of experts 1602 

848. Chemical and microscopic tests 1602 

849. Inferences from circumjacent tests 1603 

850. Inference from falsity of contents 1608 

851. Proof of writing by third party 1609 

CHAPTER XVI. 

INTERSTATE EXTRADITION. 

§ 851a. Not a matter of comity 1611 

851b. Special statutes and rules of governors 1614 

852. What is necessary to show by the indictment or affidavit 1615 

853. To what extent the governor's decision may be reviewed 1617 

854. Constructive presence not sufficient 1618 

855. Good faith of prosecution always open to inquiry .... 1619 

856. No power to take from prison one confined under con- 

viction 1619 



XVI CONTENTS. 

§ 85T. Wlicther accused is a fugitive, always open to inquiry 1620 

858. Meager evidence as to being a fugitive does not entitle 

prisoner to be discharged 1620 

859. Evidence of forcible capture not admissible on a writ 

of habeas corpus before or upon the trial 1622 

860. Defective process does not entitle prisoner to release 1622 

861. Effect of surrender, to exonerate bail 1623 

862. Sufficiency of indictment open to inquiry 1623 

863. Evidence taken on preliminary hearing not examined 

on habeas corpus 1624 

864. Writ of error to review decision on habeas corpus 1625 

865. Purpose of habeas corpus proceedings 1626 

866. Weight of the evidence 1626 

867. "Indictment" or other accusations synonymous with 

"information" 1627 

868. Matters in abatement and substantive defenses not con- 

sidered 1628 

869. When a notary public is a "magistrate" 1628 

870. Complaint filed before a committing magistrate is a 

"charge of crime" 1629 

CHAPTER XVII. 

CIRCUMSTANTIAL EVIDENCE. 

I. Circumstantial Evidence. 

§871. Definition 1632 

872. Illustrations of 1633 

873. Certain and uncertain 1634 

874. Value of 1635 

875. Comments of court upon relative merits of direct and 

circumstantial evidence 1638 

876. Necessity for; limitations on 1642 

877. Relevancy of circumstantial evidence 1645 

If. Motive. 

§ 877a. Motive generally 1646 

878. Motive not a necessity 1646 

878a. Absence of apparent motive 1647 

879. Proof of motive 1649 

880. Motive in crimes through which money is secured 1650 

881. Motive in marital crimes 165.1 

882. Showing motive through threats 1653 

883. Showing motive through previous quarrels and ill feel- 

ing 16.S6 

884. Showing motive through other crimes 1657 



CONTENTS. :K.V1J 

§ 885. Showing motive through other crimes, continued .... 1658 

886. Showing motive through fraud 1662 

887. Showing motive in sexual crimes 1667 

888. Circumstantial evidence in conspiracy 167-1 

889. Showing motive in arson 1675 

890. Showing motive in assault and battery 1678 

891. Showing motive in burglary 1680 

III. Motive in Homicide. 

§ 892. Motive in homicide generally 1680 

893. Relevancy of evidence in homicide 1681 

894. Every essential element in homicide may be established 

by circumstantial evidence 1681 

895. Relevancy of circumstantial evidence to show motive 1682 

896. Proof of motive 1684 

897. Desire for pecuniary gain 1685 

898. Quarrels and ill feeling as showing motive in homicide 1687 

899. Concealment of other crimes as motive in homicide 1689 

900. Showing motive in marital homicide 1690 

901. Desire to be rid of a burden or obstacle as showing 

motive 1691 

902. Desire for revenge as showing motive 1692 

903. Jealousy and unrequited love as motive 1693 

904. Disturbed marital relations as motive in homicide .... 1695 

905. Accused testifying to his own motive 1698 

IV. Circumstances in Homicide. 

§ 906. Circumstances in homicide generally 1699 

907. Threats in homicide in general 1700 

908. Impersonal and conditional threats by accused 1702 

909. Threats by accused against classes of persons 1704 

910. Threats of accused against third persons 1705 

911. Remoteness of threats in homicide by the accused 1706 

912. Threats by deceased against the accused 1707 

913. Threats against deceased by third persons 1713 

914. Caution in admitting evidence of threats 1714 

915. Circumstances showing preparation for crime 1716 

916. Circumstances showing ability and opportunity to com- 

mit crime 1719 

917. Circumstances preceding the homicide 1722 

918. Relevancy of previous difficulties between deceased and 

accused 1726 

919. Preceding circumstances in homicide tending to show 

conspiracy 1729 

920. Offense connected with the crime charged; declarations 

of accused and of deceased connected therewith 1733 

921. Contemporaneous circumstances in homicide 1740 

Whart Crim. Ev. — ii. 



XVI 11 CONTENTS. 

§ 922. Subsequent circumstances in homicide 1743 

923. Circumstances showing subsequent threats, possession 

of money or property, weapons, flight, or declarations 1746 
V. Circumstances Relevant in Self-Defense in Homicide. 

§ 924. Definition of self-defense 1753 

925. Necessity of showing that the homicide was in self- 

defense 1755 

926. Accused's knowledge of deceased's character 1758 

927. Deceased's habit of carrying weapons 1761 

928. Circumstances causing apprehension of and showing 

imminence of danger 1765 

929. Apprehension of third parties ; testimony as to intent 

of deceased 1769 

930. Apprehension from disparity in physical strength of 

the parties 1771 

931. Circumstances surrounding the homicidal act 1773 

932. Homicide in defense of another 1776 

933. Homicide in defense of the family relation 1779 

VI. Identification of Persons in Homicide. 

§ 934. Identification generally 1733 

935. Basis of personal identification 1785 

936. Identification from foot prints and tracks 1795 

937. Identification from the inspection of the person 1799 

938. Identification from physical peculiarities 1801 

939. Identification from presence of accused at scene of 

crime 1804 

940. Identification from opinion evidence 1809 

941. Identification of deceased from circumstances 1813 

VII. Exculpatory Defenses. 

§ 942. Presumptions based on circumstantial evidence 1815 

943. Burden of proof and presumption of innocence 1817 

944. Measure of exculpation required of accused 1818 

945. Measure of exculpation required of accused as modified 

by statute 1821 

946. Exculpatory circumstances in rape 1824 

947. Exculpatory circumstances that tend to establish in- 

nocence 1825 

948. Absence of motive as exculpation 1827 

949. Exculpatory circumstances connected with the posses- 

sion of property 1829 

950. Exculpation by conduct, explanation of flight, etc 1831 

951. Exculpation by proof of alibi 1833 

952. The basic rule of the law of criminal evidence; reason- 

able doubt 1838 



CRIMINAL EVIDENCE. 



CHAPTER X. 

DEMONSTRATIVE EVIDENCE. 

§ SISa. In general. 

518b. Profert of person, showing age, identity, wounds, etc. 

518c. Objects illustrating offense. 

518d. Instruments of the crime. 

518e. Articles traced to the accused or connected with the offense, when 
admissible. 

518f. Demonstrative evidence illegally obtained, not admissible in Unit- 
ed States courts. 

518g. Demonstrative evidence not excluded in state courts by method 
of obtaining it. 

SlSh. Admissibility of evidence obtained through art and science. 

518i. Photographs. 

518j. Photographs, continued. 

518k. Photographs, continued. 

5181. Photographs ; X-ray photographs. 

518m. Photographs in rogues' galler)\ 

§ 518a. In general. — Demonstrative evidence is a di- 
rect, physical illustration of a fact presented to the court and 
the jury, taking the place of a verbal description of such fact 
by witnesses.^ 

^Freeman v. Hutchinson, 15 Ind. Sharon Springs, 28 Hun, 344; Gen- 

App. 639, 43 N. E. 16; Com. v. Best. try v. McMinnis, 3 Dana, 382; Ar- 

180 Mass. 492, 62 N. E. 748; Gaunt kansas River Packet Co. v. Hobbs, 

V. State, 50 N. J. L. 490, 14 Atl. 105 Tenn. 29, 58 S. W. 278; 

600, 8 Am. Crim. Rep. 297 ; People House v. State, 42 Tex. Crim. Rep. 

V. Gon::ales, 35 N. Y. 49 ; Hubby v. 125, 96 Am. St. Rep. 797, 57 S. 

State, 8 Tex. App. 597; HiUcr v. W. 825. 

1071 



1072 



EVIDENCE IX CRIMINAL CASES. [CHAP. X. 



As to its competency, deinonstrative evidence is measured 
by all the qualifications prescribed by law, and it must al- 
ways be relevant to the issue.^ Where it is offered to prove 
a minor fact, capable of being equally as well proved by other 
testimony, and the production of the object would be attend- 
ed by prejudicial results, it should be rejected.^ But where 
it is competent, and has a direct bearing upon the issue, it is 
not to be excluded because of its other effects on the jury.* 

The method of its procurement, no matter how objection- 
able, does not affect its admissibility, where its production 
does not cause the party against whom it is offered to invol- 
untarilv incriminate himself.^ 



2 Tesncy v. State. 77 Ala. 33 : 
Com. V. Brelsford, 161 Mass. 61, 36 
N. E. 677; United States v. Craig, 
4 Wash. C. C. 729, Fed. Cas. No. 
14,883; Ecell v. State, 103 Ala. 8. 15 
So. 818; People v. Sullivan, 129 Cal. 
557, 62 Pac. 101; People v. West- 
lake. 134 Cal. 505, 66 Pac. 731. 

3 Lonisvillc & N. R. Co. v. Pear- 
son, 97 Ala. 211, 12 So. 176; Perry 
V. Metropolitan Street R. Co. 68 
App. Div. 351, 74 N. Y. Supp. 1. 

^ State V. Wieners, 66 Mo. 13; 
Turner v. Slate, 89 Tenn. 547, 15 S. 
W. 838 ; Hart v. State, 15 Tex. App. . 
202, 228, 49 Am. Rep. 188 ; Chicago 
& A. R. Co. V. Clausen, 173 111. 100, 
SO N. E. 680; Early v. State, 9 Tex. 
App. 476 ; State v. Goddard, 146 
Mo. 177. 48 S. W. 82: State v. 
Ward, 61 Vt. 153, 17 Atl. 483, 8 
Am. Crim. Rep. 207; State v. Nord- 
strom, 7 Wash. 506, 35 Pac. 382; 
Maclin v. State. 44 Ark. 115; Story 
V. State. 99 Ind. 413; State v. Mur- 
phy, 118 Mo. 7, 25 S. W. 95; State 
V. Cadotte, 17 Mont. 315, 42 Pac. 
%S7;Watkins v. State, 89 Ala. 82, 



8 So. 134: Dorsey v. State, 107 
Ala. 157, 18 So. 199; People v. 
Wright, 89 Mich. 70, 50 N. W. 792; 
State V. Buchler, 103 Mo. 203, 15 
S. W. 331 ; State v. Porter, 32 Or. 
135, 49 Pac. 964; King v. State, 
13 Tex. App. 277; Savary v. State, 
62 Neb. 166, 87 N. W. 34; Sullivan 
V. Com. 93 Pa. 284; Spies v. People, 
122 111. 1, 3 Am. St. Rep. 320, 12 
N. E. 865, 17 N. E. 898, 6 Am. 
Crim. Rep. 570: Lezcis v. Hartley, 
7 Car. & P. 405; Baggs v. Martin, 
47 C. C. A. 175. 108 Fed. 33 ; People 
V. Goldenson, 76 Cal. 328, 19 Pac. 
161; Jupitz V. People, 34 III. 516; 
State V. Graham, 74 N. C. 646, 21 
Am. Rep. 493, 1 Am. Crim. Rep. 
182; Rice v. Rice, 4,7 N. J. Eq. 
559, 11 L.R.A. 591. 21 Atl. 286. 

5 State V. Grisivold, 67 Conn. 29C, 
33 L.R.A. 227, 34 Atl. 1046; Drake 
V. State. 75 Ga. 413; Gindrat v. 
People, 138 111. 103, 27 N. E. 1085 ; 
State V. Pomcroy, 130 Mo. 489, 32 
S. W. 1002: State v. Atkinson, 40 
S. C. 363. 42 Am. St. Rep. 877, 18 
S. E. 1021; Com. v. Welsh, 110 



§ 518b] 



DEMONSTRATIVE EVIDENCE. 



1073 



Its relevancy and admissibility are always questions to be 
determined by the court.^ 

Where the production of such evidence would obviously 
have other effects than that of illustration or demonstration, 
its admissibility should be determined by the court, in the first 
instance, in the absence of the jury in criminal cases. Being 
proof in itself, its effect cannot be limited by instructions, and 
there should be no premature and prejudicial exhibition of it, 
until the court has determined its admissibility. 

§ 518b. Profert of person, showing age, identity, 
wounds, etc. — Where the person of the party of the wit- 
ness is offered as evidence of his age, it is error to allow the 
jury to fix his age by looking at him.^ So, it is error to pre- 
sent a child of six weeks or even seven months old, to a jury 
for comparison in order to establish its paternity,^ but a child 
born to prosecutrix may be brought into court to corroborate 
her testimony as to its birth and identity as the result of the 
illicit intercourse.* 



Mass. 359; Com v. Ryan, 157 Mass. 
403, 32 N. E. 349 ; Com. v. Tibbetts, 
157 Mass. 519, 32 N. E. 910; State 
V. Burroughs, 72 Me. 479; State v. 
Edivards, 51 W. Va. 220, 59 L.R.A. 
465, 41 S. E. 429; State v. Flynn, 
36 N. H. 64; State v. Sawtelle, 66 
N. H. 488, 32 Atl. 831, 10 Am. 
Crim. Rep. 347; Reid v. State, 20 
Ga. 681 ; Com. v. Hurley, 158 Mass. 
159, 33 N. E. 342; People v. Mur- 
phy, 93 Mich. 41, 52 N. W. 1042; 
State V. Garrett, 71 N. C. 85, 17 
Am. Rep. 1 ; State v. Fuller, 34 
Mont. 12, 8 L.R.A. (N.S.) 762, 85 
Pac. 369, 9 A. & E. Ann. Cas. 648. 
^Jackson V. Pool, 91 Tenn. 448, 
19 S. W. 324; Quiucy Gas & Elec- 
Crim. Ev. Vol. II.— 68. 



trie Co. V. Baumann, 203 III. 295, 
67 N. E. 807 ; Gray v. State, 55 Tex. 
Crim. Rep. 90, 22 L.R.A. (N.S.) 513. 
114 S. W. 635. 

1 IVistrand v. People, 213 111. 72, 
72 N. E. 748. 

2 Copcland v. State, — Tex. Crim. 
Rep. — , 40 S. W. 589; Hilton v. 
State, 41 Tex. Crim. Rep. 190. 53 
S. W. 113; State v. Harvey, 112 
Iowa, 416. 52 L.R.A. 500, 84 Am. 
St. Rep. 350, 84 N. W. 535. 

^ State V. Danforth. 7Z N. H. 215, 
111 Am. St. Rep. 600. 60 Atl. 839, 6 
A. & E. Ann. Cas. 557; State v. 
Neel, 23 Utah, 541, 65 Pac. 494. 

Contra, Gray v. State, 43 Tex. 
Crim. Rep. 300, 65 S. W. 375. 



1074 



EVIDENCE IN CRIMINAL CASES. [CHAP. X. 



So, where it was necessary to determine the race of the 
person, it is proper to produce the party.* 

And where the character and extent of physical injuries is 
in question it is proper to produce the party and to illustrate 
the manner of receiving, the nature and extent of the wounds,* 
but this will not be extended to an examination of the private 
parts of tlie person to determine questions raised.^ 

§ 518c. Objects illustrating offense. — The authorities 
are abundant that tracks^ may be shown about the scene of 
crime, for comparison, identity, and other purposes relevant 
to the issue; so parts of the deceased, such as the skull,^ jaw- 
bone,' that may ilhistrate the nature of the wounds and identi- 
fy tlie assailant, or the instrument where that is essential. Not 
only the clotiiing * may be exhibited, but it may be arranged 



* Jones V. State. 156 Ala. 175, 47 
So. 100. 

^Sellcck V. JanesvUlc, 100 Wis. 
157, 41 L.R.A. 563, 69 Am. St. Rep. 
906, 75 N. W. 975 ; Carrico v. West 
Virginia C. & P. R. Co. 39 W. Va. 
86, 24 L.R.A. 50, 19 S. E. 571; 
Graves v. Battle Creek, 95 Mich. 
266, 19 L.R.A. 641, 35 Am. St. Rep. 
561, 54 N. W. 757 ; Hall v. Manson, 
99 Iowa, 698, 34 L.R.A. 207, 68 X. 
W. 922. 

See Houston & T. C. R. Co. v. 
Anglin, 99 Tex. 349. 2 L.R.A. 
(X.S.) 386, 89 S. W. 966. 

6 State V. Stevens, 133 Iowa, 684, 
110 N. W. 1037; Boivers v. State. 
45 Tex. Crim. Rep. 185, 75 S. W. 
299. 

"^People V. Searcey, 121 Cal. 1, 41 
L.R.A. 157, S2, Pac. 359 ; Johnson v. 
State, 59 N. J. L. 535, 38 L.R.A. 
2,7Z, 37 Atl. 949, 39 Atl. 646. 

2 State V. Bailey, 79 Conn. 589, 65 



Atl. 951; Thrawley v. State, \S^ 
Ind. 375, 55 N. E. 95 ; State v. No- 
vak, 109 Iowa, 717, 79 N. W. 465; 
State V. Moxley. 102 Mo. 374, 14 S. 
W. 969, 15 S. W. 556; People v. 
Besold. 154 Cal. 363, 97 Pac. 871. 

But see Self v. State, 90 Miss. 58, 
12 L.R.A.(N.S.) 238, 43 So. 945. 

^People V. Way. 191 N. Y. 533. 
84 N. E. 1117, 119 App. Div. 344. 
104 N. Y. Supp. 277. 

^ State V. Nordstrom. 7 Wash. 
506, 35 Pac. 382; State v. Brannan, 
206 Mo. 636, 105 S. W. 602; State 
V. Craft. 118 La. 117, 42 So. 718: 
Pate V. State, 150 Ala. 10, 43 So. 
343; Andrews v. State, 159 Ala. 14. 

48 So. 858; State v. Churchill, 52 
Wash. 210, 100 Pac. 309; State v. 
Ruhaka, 82 Conn. 59, 72 Atl. 566; 
Benneiield v. United States. 2 Okla. 
Crim. Rep. 44, 100 Pac. 34, 102 Pac. 
647 ; Rollings v. State, 160 Ala. 82, 

49 So. 329; People v. Muhly. 11 Cal. 



§§ 518d, 518e] demonstrative evidence. 



1075 



upon a frame for convenience in exhibiting it to the jiiry,^ and 
structures® and diagram of location' may all be used as an aid 



in determining the charge under trial. 



§ 518d. Instruments of the crime. — As illustrating the 
instruments connected with the crime, and for the purpose of 
enabling the jury to use the physical senses in aid of their 
judgment, as well as to hear the testimony of the witnesses, 
any implement or means used in the commission of the crime, 
under proper limitations as to relevancy, is always admis- 
sible.^ 

§ 51 Be. Articles tracea to tne accused or connected with 
the offense, when admissible. — On the same principle as 
the admissions of the instruments or means connected with 
the offense, to illustrate the same, articles of personal property 
in the possession of the deceased at the time of the homicide 
or other criminal oft'ense against him, or personal property in 
possession of the accused at the time and connected with the 
offense, either to identify the offense, the deceased, or the 



App. 129, 104 Pac. 466; State v. 
Moore. SO Kan. 232, 102 Pac. 475. 

^People V. Durrant, 116 Cal. 179, 
48 Pac. 75, 10 Am. Crim. Rep. 499. 

^People V. Maiighs, 149 Cal. 253. 
86 Pac. 187. 

T People V. Shears, 133 Cal. 154. 
65 Pac. 295; People v. Del Vermo, 
192 N. Y. 470, 85 N. E. 690. 

^ Instances of admission in evi- 
dence of bullets, guns, knives, and 
other weapons on homicide and 
criminal assaults : Craivford v. 
State, 112 Ala. 1, 21 So. 214; Fuller 
V. State, 117 Ala. 36, 23 So. 688; 
People V. Hill, 123 Cal. 571, 56 Pac. 
443; People v. Sullivan, 129 Cal. 



557. 62 Pac. 101 ; People v. Morale.^, 
143 Cal. 550, 77 Pac. 470; People v. 
Weber, 149 Cal. 325, 86 Pac. 671 : 
State V. Sherouk, 78 Conn. 718, 61 
Atl. 897; Dill v. State, 106 Ga. 683, 
32 S. E. 660; Boynton v. State, 115 
Ga. 587, 41 S. E. 995; Roberts v. 
State, 123 Ga. 146, 51 S. E. 374; 
State V. Sigler, 114 Iowa, 408, 87 N. 
W. 283; Com. v. Best, 180 Mass. 
492, 62 N. E. 748: People v. Flaui- 
r/aii, 174 N. Y. 356, 66 N. E 988; 
State V. Edtvards, 51 W. Va. 220, 
59 L.R.A. 465, 41 S. E. 429; People 
V. Mar Gin Suie, 11 Cal. App. 42, 
103 Pac. 951. 



1076 



EVIDENCE IN CRIMINAL CASES [CHAP. X. 



accused, are properly admissible as a part of the demonstrating 
and illustrating evidence.^ 

§ 518f. Demonstrative evidence illegally obtained, not 
admissible in United States courts. — State courts, in some 
instances, in express terms, have stated their indifiference 
to the methods used to obtain demonstrative evidence,^ and 



1 State V. Barrington. 198 Mo. 23, 
95 S. W. 235, 205 U. S. 483. 51 L. 
ed. 890, 27 Sup. Ct. Rep. 582; Wil- 
son V. State, 128 Ala. 17, 29 So. 569 ; 
Hill V. State, 146 Ala. 51, 41 So. 
621; People v. IVestlake, 134 Cal. 
505, 66 Pac. 731 ; Williams v. State, 
119 Ga. 564, 46 S. E. 837; Henry v. 
People, 198 111. 162, 65 N. E. 120; 
State V. Peterson, 110 Iowa. 647, 82 
N. W. 329; State v. Keenan, 7 Kan. 
App. 813, 55 Pac. 102; People v. 
Kinney, 124 Mich. 486, 83 N. W. 
147 ; State v. Goddard, 146 Mo. 177. 
48 S. W. 82 ; State v. Gartrell. 171 
Mo. 489, 71 S. W. 1045; State v. 
Hill, 65 N. J. L. 626, 47 Atl. 814, 12 
Am. Crim. Rep. 191 ; People v. 
Neufcld, 165 N. Y. 43, 58 N. E. 
786; State v. Porter, 32 Or. 135, 49 
Pac. 964; State v. Garringlon, 11 S. 
D. 178, 76 N. W. 326. 

1 "Courts, in the administration 
of the criminal law, are not accus- 
tomed to be over sensitive in regard 
to the sources from which evidence 
comes." Gindrat v. People. 138 111. 
103, 27 N. E. 1085. 

However unfair or illegal may 
be the methods by which evidence 
may be obtained in a criminal case, 
if relevant, it is admissible, if the 
accused is not compelled to do any 
act which criminates himself. 
Shields v. State, 104 Ala. 35, 53 Am. 



St. Rep. 17, 16 So. 85, 9 Am. Crim. 
Rep. 149. 

Notwithstanding some qualifica- 
tions attached to these statements, 
they are not conducive to upholding 
that dignified and solemn procedure 
that should always characterize 
courts when passing upon questions 
of forfeiture of property, or life 
and liberty, of an accused. But 
such statements are a warrant to 
officers to exceed their authority, 
and, instead of being protective, to 
become oppressive. The value of 
all testimony is that it is free and 
voluntary, and the natural, uncon- 
strained recital of facts. Demon- 
strative proof, the most persuasive 
of all, should be admitted only un- 
der circumstances where it becomes 
of aid to the court, and not as a 
means of oppression. 

Under such view of the law as is 
indulged in the Illinois and Ala- 
bama cases, a man may be theoret- 
ically protected by the presumption 
of innocence guarding him 
throughout the trial, but in prac- 
tice, he is forced to prove himse'f 
innocent. The unconscionab'e 

sweating of prisoners in city jails, 
and the oppressiveness of the ex- 
ecutive machinery, arise out of the 
expressions set forth, and any lim- 
itations are utterly disregarded. 



§ 518f] 



DEMONSTRATIVE EVIDENCE 



1077 



refuse to exclude it on the ground that it was illegally ob- 
tained. A different rule prevails in the United States courts, 
where the 4th Amendment, declaring that persons, houses, 
papers, and effects shall be secure against unreasonable search 
and seizure ; and the 5th Amendment to the Constitution, 
declaring that no one shall be compelled, in any criminal case, 
to be a witness against himself, constitute valid grounds for 
the exclusion of such evidence, when obtained contrary to 
the provisions of such Amendments. "Both Amendments re- 
late to th^ personal security of the citizen. They nearly run 
into and mutually throw light upon each other. When the 
thing forbidden in the 5th Amendment, namely, compelling a 
man to be a witness against himself, is the object of a search 
and seizure of his private papers, it is an 'unreasonable search 
and seizure;' within the 4th Amendment." ^ 



2 Boj-d V. United States, 116 U. S. 
616. 29 L. ed. 746, 6 Sup. Ct. Rep. 
524; Counselman v. Hitchcock, 142 
U. S. 580, 35 L. ed. 1120, 3 Inters. 
Com. Rep. 816, 12 Sup. Ct. Rep. 
195; United States v. Wong Quong 
Wong, 35 C. C. A. 327. 94 Fed. 833 ; 
Thurston v. Clark, 107 Cal. 290, 40 
Pac. 437; A'ewberry v. Carpenter, 
107 Mich. 570, 31 L.R.A. 164, 61 
Am. St. Rep. 346, 65 N. W. 531; 
Mallett V. North Carolina, 181 U. 
S. 600, 45 L. ed. 1021, 21 Sup. Ct. 
Rep. 730, 15 Am. Crim. Rep. 241; 
Adams v. Neiv York, 192 U. S. 597, 
48 L. ed. 580, 24 Sup. Ct. Rep. 372 ; 
State V. Height, 117 Iowa. 661, 59 
L.R.A. 437, 94 Am. St. Rep. Z2Z, 91 
N. W. 938; State v. Faulkner. 175 
Mo. 606, 75 S. W. 135, 136 ; Ex par- 
te Wilson, 39 Tex. Crim. Rep. 638, 
47 S. W. 1000; State v. Slamon, 72, 
Vt. 214, 87 Am. St. Rep. 711, 50 
Atl. 1098, 15 Am. Crim. Rep. 686; 



McKnight v. United States. 54 C. 
C. A. 358, 116 Fed. 981; State v. 
Gardner, 88 Minn. 138, 92 N. \V. 
533; Re Green, 86 Mo. App. 221; 
Blum V. State, 94 Md. 382, 384, 56 
L.R.A. 322, 51 Atl. 29; Hale v.He:'- 
kel, 201 U. S. 71, 72, 50 L. ed. 664, 
665, 26 Sup. Ct. Rep. 370; Ballman 
V. Fagin, 200 U. S. 195, 50 L. ed. 
437, 26 Sup. Ct. Rep. 212; State v. 
Sheridan, 121 Iowa, 167, 96 N. W. 
731. 

In the cases of Moyer v. Nichols, 
203 U. S. 221, 51 L. ed. 160, 27 Sup. 
Ct. Rep. 121 ; and ^ettibone v. 
Nichols, 203 U. S. 192, 51 L. ed. 
148, 27 Sup. Ct. Rep. Ill, 7 A. & E. 
Ann. Cas. 1047, the doctrine an- 
nounced in Boyd v. United State: 
would seem to be departed from on 
the question of illegal seizure, but 
a close inspection of these later 
cases will disclose that while the 
court held that, although the sei- 



10/8 



EVIDENCE IN CRIMINAL CASES. [CHAP. X. 



§ 518g. Demonstrative evidence not excluded in state 
courts by method of obtaining it. — It is not ground for 
exclusion of an article of demonstrative evidence, that it was 
taken from the possession of the accused.^ even though it was 
forcibly taken from him,^ or that it was obtained by illegal 
search and seizure.^ 

§ 518h. Admissibility of evidence obtained through art 
and science. — Courts always a^■ail themselves of anv 



zure of the persons of the petition- 
ers might have been unlawful, yet 
any investigation of that fact as to 
the motives would be irrelevant 
and improper, for the reason that 
inasmuch as the proceedings were 
in the nature of interstate extradi- 
tion, it was not necessary to go be- 
hind the indictment and mandate 
of the respective governors of the 
states of Idaho and Colorado, to 
inquire how the petitioners came 
within reach of the process of the 
Idaho court in which the indict- 
ments were pending. 

^Gindrat v. People, 138 111. 103. 
27 N. E. 1085; Sicbert v. Feotle, 
143 111. 571, 32 N. E. 431 ; State v. 
Nordstrom, 7 Wash. 506, 36 Pac. 
382; Shields v. State. 104 Ala. 35, 
S3 Am. St. Rep. 17, 16 So. 85, 9 
Am. Crim. Rep. 149. 

2 Com. V. Tibbetts. 157 Mass. 519, 
32 N. E. 910; Com. v. Smith, 166 
Mass. 370, 44 N. E. 503. 

^ Spies v. People, 122 III. 1. 3 Am. 
St. Rep. 320, 12 N. E. 865, 17 N. E. 
898, 6 Am. Crim. Rep. 570; State v. 
Burroughs, 72 Me. 479; Coui. v. 
Brclsford, 161 Mass 61. 36 N. E. 
677; State v. Kaiib, 15 Mo. App 
433; Langdon v. People, 133 III. 397. 



24 N. E. 877; Glennon v. Britiou. 
155 111. 245. 246, 40 N. E 598: 
Starchman v. State. 62 Ark 540, 35 
S. W. 940; State v. Gristvold, C7 
Conn. 306, ZZ L.R.A. 229, 34 Atl. 
1047; State v. O'Connor, 3 Kan. 
App. 598, 43 Pac. 860; WiUiams v. 
.S"/fl/^. 100 Ga. 518, 519, 39 L.R.A. 
271, 28 S. E. 626; State v. Pomeroy, 
130 Mo. 498, Z2 S. W. 1004; State 
V. Atkinson, 40 S. C. 372, 42 Am. 
St. Rep. 877, 18 S. E. 1025 ; State v. 
Van Tassel, 103 Iowa, 15, 72 N. W. 
500; State v. Davis, 108 Mo. 669. 
32 Am. St. Rep. 640. 18 S. \\\ 895 : 
State V. Krinski, 78 Vt. 165. 62 At!. 
37; State v. Royce, 38 Wash. 116. 
117, 80 Pac. 270, 3 A. & E. Ann. 
Cas. 351 ; Woods v. Co'treU. 55 \\'. 
Va. 481. 65 L.R.A. 616, 104 Am. St. 
Rep. 1004. 47 S. E. 277, 2 A. & E 
Ann. Cas. 933. 

But see State v. Sheridan. 121 
Iowa, 167, 96 N. W. 731 ; Hammock 
V. State. 1 Ga. App. 126, 58 S. E. 
66; Hughes v. State, 2 Ga. App. 29, 
58 S. E. 390. 

Courts will not consider as an is- 
sue the method of obtaining evi- 
dence. Imbodcn v. People, 40 Colo. 
142, 90 Pac. 608. 



§ 518h] DEMONSTRATIVE EVIDENCE. 1079 

progress in art or science that can be safely relied upon to 
furnish facts of evidentiary value. The principles of evidence 
apply to such enlarged field with equal correctness and cer- 
tainty. 

So recent as 1877, testimony offered of a telephone con- 
\ersation or a phonographic record would have been rejected, 
but the improvement in the art of speech and sound transmis- 
sion is such that to-day the value of the same is essential in 
daily life. Recently a graphophone record was admitted to 
reproduce before the court the sounds caused by certain ma- 
chinery in a neighborhood where it was complained against 
as a common nuisance.^ 

We may well hold that the later inventions of the moving- 
picture and snap-shot cameras can be relied upon as furnish- 
ing evidence of identity, and that these would be competent 
and admissible upon proper preliminary proof. No sufficient 
reason can be urged against the exclusion of picture films 
showing a prize fight, where the parties were indicted for 
the violation of the antiprize fight law, or, on manslaughter, 
where one of the parties was killed, where identification was 
sought by such means ; nor the snap-shot of a fleeing assassin, 
nor the flash-light photograph of burglars enterin , leaving, or 
burglarizing premises ; nor of photographs taken by the au- 
thorities for identification purposes ; nor of the anthropo- 
metric measurements and physical description of parties fur- 
nished by the Bertillon Code. 

And it seems that, where evidence is admitted of this char- 
acter, even on acquittal, the defendant is not entitled to have 
it expunged from the record.^ 

1 Boyne City. G. & A. R. Co. v. In the above case the court ob- 

Anderson, !46 IMich. 328, 8 L.R.A. serves: "While the court can com- 

(N.S.) 306, 109 N. W. 429. mand the superintendent of prisons 

^ Molineux v. Collins \77 N. Y. to do his duty, it is not his duty to 

395, 65 L.R.A. 104. 106, 69 N. E give up a record made under the 

727. authority of a statute, and until 



1080 



EVIDENCE IN CRIMINAL CASES. [CHAP. X. 



§ 518i. Photographs. — Courts take judicial notice that 
photography is the resuh of art guided by certain principles 
of science, and produces correct likenesses, the production be- 
ing governed by the operation of natural laws.^ But while 



the legislature makes it his duty to 
surrender the record in question, 
it should remain in his custody, be- 
cause the state put it there and has 
not authorized its removal. An in- 
recent man accused of. crime is 
sometimes compelled to make sacri- 
fice and undergo suffering for the 
benefit of society. Like payment of 
tax'es and service on juries, it is 
a part of the price paid for the 
privilege of living in a country 
governed by law. One, for the good 
of all, may be required to submit 
to imprisonment, incur expense, and 
endure mental distress, because the 
state cannot exist without the pres- 
ervation of order, and order can- 
not be preserved without the 
punishment of the guilty, which 
necessarily involves sometimes the 
trial of the innocent." 

The above opinion is based upon 
a statute, but the argument in sup- 
port of the retention of the record 
is not convincing. On a court 
record the words, "found not guil- 
ty," exonerate the accused, but to 
continue the exposition of a man's 
personality, by which he was identi- 
fied as a criminal, takes away the 
protection to which he is entitled by 
law, and, in the absence of a man- 
datory statute, courts would read- 
ily expunge an unnecessary and 
oppressive record. Schulman v. 
Whitaker, 117 La. 704, 7 L.R.A. 
(N.S.) 274, 42 So. 227, 8 A. & E. 
Ann. Cas. 1174. 

But see Downs v. Svcann, 111 Md. 



53, 23 L.R.A. (N.S.) 739, 134 Am. 
St. Rep. 586, 73 Atl. 653; People 
V. Sheridan, 15 N. Y. S. R. 938, 
1 N. Y. Supp. 61; People v. Bur- 
leigh, 1 N. Y. Crim. Rep. 522; 
People V. Quigg, 59 N. Y. 88. Cas- 
terton v. Vienna, 163 N. Y. 368, 57 
N. E. 622. 

1 Udder zook v. Com. 76 Pa. 340, 1 
Am. Crim. Rep. 311, 313. 

"It is evident that the competency* 
of the evidence in such a case de- 
pends on the reliability of the 
photograph as a work of art, and 
this, in the case before us, in which 
no proof was made by expert? of 
this reliability, must depend upon 
the judicial cognizance we may take 
of photographs as an established 
means of producing a correct like- 
ness. The Daguerrean process v,a;; 
first given to the world in 1889. 
It was soon followed by photog- 
raphy, of which we have had near- 
ly a generation's experience. It has 
become a customary and common 
mode of taking and preserving 
news as well as the likenesses of 
persons, and has obtained universal 
assent to the correctness of its 
delineations. We know that its 
principles are derived from science ; 
that the images on the plate, made 
by the rays of light through tl;e 
camera, are dependent on the sane 
general laws which produce the 
images of outward forms upon the 
retina through the lenses of the eye. 
The process has become one in 



§ 518j] DEMONSTRATIVE EVIDENCE. 1081 

they are admissible in evidence, in the absence of the original, 
still to entitle them to be received they must be shown to have 
been accurately taken, and to be correct representations of 
what they purport to represent.^ Where they are offered as 
a general representation of physical objects, but slight proof 
of such accuracy is required, but where handwriting is in- 
volved, or any object where minute differences of height or 
breadth are important, then more convincing proof is required.^ 
We shall treat of photographs as evidence in this connection 
only in criminal cases. 

§ 518j. Photographs, continued. — With the purpose of 
proving identity, it was held competent on the trial of a person 
for a crime committed four years before, to introduce photo- 
graphs in evidence, of the defendant and his alleged con- 
federates, shown to be good likenesses of them at the time 
the crime was committed, and proved to have been shown to 
witnesses for the government shortly afterward, who were 
then able to identify them as the men seen together at the 
place of the crime on the evening before its commission.^ 
And a photograph of a person charged to have been murdered, 
although taken two years before her death, is admissible in 
evidence when shown to be a fair representation of her as 

general use, so common that we An X-ray photograph held ai- 

cannot refuse to take judicial cog- missible in murder, showing I'le 

nizance of it as a proper means ot position of the bullet, on the ground 

producing likenesses." of judicial notice. State v. Math- 

Wurmser v. Frederick, 62 Mo. eson, 130 Iowa, 440, 114 Am. St. 

App. 634. Rep. 427, 103 N. W. 137, 8 A. & E. 

29 Enc. Ev. p. 771; United States Ann. Cas. 430. 

V. Pagliano, 53 Fed. 1001 ; State v. ^ Considine v. United States. 50 

Cook, 75 Conn. 267, 53 Atl. 589; C. C. A. 272, 112 Fed. 342, 348; 

Chicago & A. R. Co. v. Meyers, 86 Cowley v. People, 83 N. Y. 464, 

III. App. 401. 38 Am. Rep. 464; Com. v. Con- 
3 Cunningham v. Fair Haven & nors, 156 Pa. 147, 27 Atl. 366. 

IV. R. Co. 72 Conn. 244, 43 A:l. 
1047. 



1082 



EVIDENCE IN CRIMINAL CASES. [CIIAP. X. 



she was at the time of the homicide.^ And photographs of 
handwriting- are admissible in a criminal case in which the 
question in issue is the identification.^ On a trial for hom- 
icide, photographs showing the condition of things in the 
vicinity where the body w'as found, and disclosing the presence 
of ol)jects correctly placed on the ground by witnesses to in- 
dicate where the body, the knife, hat, and coat of deceased 
were located at the time of the first visit of the witnesses 
to the place of homicide, are admissible.* And on a prosecu- 
tion for cruelty to animals for depriving horses of necessary 
sustenance on and after January 1st, and on April 6th. de- 
fendant offered in evidence photographs of the animals taken 
after ]\Iay 1st, together with an offer to prove that on the 
days of the alleged oft'ense the horses were in the condition 
shown by such photographs, and the court held the same ad- 
missible if the preliminary fact had been established as to 
the similarity of condition, and that this was a ([uestion to 
be decided by the court. ^ A photograph taken of a man found 



^People V. Durrant, 116 Cal. 179. 
213, 10 Am. Crim. Rep. 499. 48 
Pac. 75: Rice. Crim. Ev. 154; 
Thomp. Trials, § 869. 

In addition to the photograpli of 
Blanche Lamont. there was exhibit- 
ed to the jury a dressmaker's frame, 
to allow the clothing of the dead 
girl to be seen by the jury and as 
a convenient mode of displaying it. 
Error was predicated on the use of 
the frame and the refusal of the 
court to order the garments re- 
moved from it. The court h-^M 
there was no error in such r' - 
fusal, and that there was no more 
impropriety or error in the plan 
pursued than as if the garment-: 
had been hung on a clothesline or 
huddled in a corner, the frame used 



not being claimed to represent 
the dead girl either in height, size, 
or figure. People v. Durrant. 116 
Cal. 179. 210. 10 Am. Crim. Rep. 
499. 48 Pac. 75. 

3 People V. Mooncx. 132 Cal. 13. 
63 Pac. 1070. 

^People V. Mahatch. 148 Cal. 200. 
82 Pac. 779; People v. Craudall. 
125 Cal. 133. 57 Pac. 785. 

^ State V. Cook, 75 Conn. 267. 53 
Atl. 589. 

"We cannot say the accused 
could not prove, as he offered to, 
that the photographs were accu- 
rate, and that the horses were in 
the same condition of flesh when 
the photographs were taken as on 
the 11th of March and the 6th of 
April." State v. Cook, 75 Conn. 



§ 518k] DEMONSTRATIVE EVIDENCE. 1083 

dead on tfie prairie, with his legs extended in a pecuilar man- 
ner, — one lying rigid along the ground and the other elevated 
and also stiffened, would be competent evidence when the 
question to be determined by the jury was time and manner 
of death, and the place and time where cadaveric rigidity set 
in and concluded. 

§ 518k. Photographs, continued. — On a prosecution for 
adultery, a photograph proven to be of defendant's alleged 
paramour was held admissible to identify her as the woman 
with whom the defendant had lived while residing in another 
state, thougl' the photograph was taken several years before.^ 
In a prosecution for assault with intent to murder, an X-ray 
photograph admitted to show the position of the bullet in the 
body of the deceased was not objectionable on the ground 
that it was not sufficiently identified as a representation of 
anything in evidence, but was admissible as a photograph.^ 

267, 270, 53 Atl. 589; Hams v. Best, 108 Mass. 492, 62 N. E. 748; 

Ansonia, 73 Conn. 359, 364, 47 Com. v. F elding, 184 Mass. 484, 69 

Atl. 672. N. E. 216; State v. Fiilkcrson, 97 

estate V. Hasty, 121 Iowa, 507, Mo. App. 599, 71 S. W. 704; 

96 N. W. 1115. State v. Roberts, 28 Nev. 350, 82 

^ State V. Mathcson, 130 Iowa, Pac. 100; Smith v. Territory, 11 

440, 114 Am. St. Rep. 427, 103 Okla. 669, 69 Pac. 805; State v. 

X. W. 137, 8 A. & E. Ann. Cas. MUlcr, 43 Or. 325, 74 Pac. 658; 

430. Com. V. Keller, 191 Pa. 122, 43 

As to the admissibility of photo- Atl. 198; Grooms v. State, 40 Tex. 

graphs in various instances in Crim. Rep. 319, 50 S. W. 370; 

criminal prosecutions, see State v. Com. V. Tucker, 189 Mass. 457, 7 

Pozvell, 5 Penn. (Del.) 24, 61 Atl. L.R.A.(N.S.) 1056, 76 N. E. 127; 

966; Shaffer v. United States, 24 Louisville & N. R. Co. v. Brozvn, 

.\pp. D. C. 417; State v. Rogers. 127 Ky. 732, 13 L.R.A.(N.S.) 1135, 

129 Iowa, 229, 105 N. W. 455; 106 S. W. 795; Higgs v. Minnc- 

State V. Jlersom, 90 Me. 273, 38 apolis, St. P. & S. Ste. M. R. Co. 

.Vtl. 160; Com. v. Chance, 174 16 N. D. 446, 15 L.R.A.(N.S.) 1162, 

Mass. 245, 75 Am. St. Rep. 306, 114 N. W. 722, 15 A. & E. Ann. 

54 N. E. 551; State v. Finch. 54 Cas. 97; JVillis v. State, 49 Te.v. 

Or. 482, 103 Pac. 505; Com. v. Crim. Rep. 139, 90 S. W. 1100; 



1084 EVIDENCE IN CRIMINAL CASES. [CHAP. X. 

So, to show that the defendant on a certain date wore side 
whiskers.^ But on a trial for homicide it was held error to 
admit a photograph of a porch on which deceased was stand- 
ing when killed, with a man lying in an assumed position in 
which the body was alleged to have been found, neither the 
man who took the picture nor the man lying prone having 
at any time seen the body of the deceased on the porch.'* Like- 
wise it was held error to introduce in evidence in a prosecu- 
tion for murder photographic representations of tableaux 
vivants carefully arranged by the chief witness for the state, 
intended to exhibit the situations of the parties and the scene 
of the tragedy according to such witness's account of it.* 

While conclusive effect as a matter of law should not be 
accorded by the jury to such photographs admitted in evi- 
dence, yet the weight given them should depend upon the skill, 
accuracy, and manner in which they are shown to have been 
taken, and should be considered under the same tests as other 
evidence.® 



State V. McCoy, 15 Utah, 136, 49 Buddensicck, 4 N. Y. Crim. Rep. 

Pac. 420; Paulson v. State, 118 230; People v. Jackson, 111 N. Y. 

Wis. 89, 94 N. W. 771, 15 Am. 362, 19 N. E. 54, 6 N. Y. Crim. 

Crim. Rep. 497; Wilson v. United Rep. 393; Com. v. Connors, 156 Pa. 

States, 162 U. S. 613, 40 L. ed. 147, 27 Atl. 366. 

1090. 16 Sup. Ct. Rep. 895; ^Com. v. Morgan, 159 Mass. 

Malachi v. State, 89 Ala. 134, 8 375, 34 N. E. 458. 

So. 104; Mann v. State, 22 Fla. * People v. Maughs, 149 Cal. 253, 

600; Ortiz v. State, 30 Fla. 256, 11 265, 86 Pac. 187. 

So. 611; Franklin v. State, 69 Ga. ^ Fore v. State, 75 Miss. 727, 23 

36, 47 Am. Rep. 748; State v. So. 710. 

Windahl, 95 Iowa, 470, 64 N. W. 6 Higgs v. Minneapolis, St. P. & 

420 ; State v. H olden, 42 Minn. 350, S. Ste. M. R. Co. 16 N. D. 446, 

44 N. W. 123; State v. O'Reilly, 15 L.R.A.(N.S.) 1162, 114 N. W. 

126 Mo. 597, 29 S. W. 577 ; Marion 722, 15 A. & E. Ann. Cas. 97 ; 

V. State, 20 Neb. 233, 57 Am. Rep. and case note to Dederichs v. Salt 

825, 29 N. W. 911; Ruloff v. Peo- Lake City R. Co. 35 L.R.A. 803. 

pie, 45 N. Y. 213; People v. 



§ 5181] DEMONSTRATIVE EVIDENCE. 1085 

§ 5181. Photographs; X-ray photographs. — The most 
conimon use of photographs as evidence in criminal prosecu- 
tions is to establish the identity of the person or persons 
charged with the commission of the crime, in impeachment of 
a witness, to prove the paternity of children, and the char- 
acter and disposition of persons, as well as the race to which 
they belong.^ They are also admissible to show by X-rays 
and otherwise, the nature and extent of physical injuries and 
wounds, and the scene of the crime if proved to be a correct 
representation of the locus in quo as it was at the time of 
the commission of the crime. '^ These photographs are ad- 
missible on the same ground as diagrams, plats, etc., made 
by a surveyor or other party after it has been shown to be 
correct by the delineator or suveyor, the better to explain the 
testimony of the witnesses and enable the jury to apply the 
evidence.^ And it is not necessary that such photograph 
should be taken by a professional. It is only necessary to 

1 Marion v. State, 20 Neb. 233, rely upon photographic pictures for 

57 Am. Rep. 825, 29 N. W. 911; taking resemblances of persons 

9 Enc. Ev. p. 772>; Com. v. Fielding, and animals, of scenery and all 

184 Mass. 484, 69 N. E. 216. natural objects, of buildings and 

^People V. Johnson, 140 N. Y. other artificial objects. ... A 

350, 35 N. E. 604, 9 Am. Crim. plan or picture, whether made by 

Rep. Z77 ; 9 Enc. Ev. pp. 780, 781. hand of man or by photography. 

*• Gibson v. State, 53 Tex. Crim. is admissible in evidence if verified 

Rep. 349, 370, 110 S. W. 41; Mc- by proof that it is a true rep- 

clain, Crim. Law, § 406; Com. v. resentation of the subject, to 

Robertson, 162 Mass. 90, 38 N. E. assist the jury in understanding the 

25 ; State v. O'Reilly, 126 Mo. 597, case." Marcy v. Barnes, 16 Gray, 

29 S. W. 577; People v. Jackson, 161, 77 Am. Dec. 405; Hollenbeck 

111 N. Y. 362, 19 N. E. 54; Blair v. Rowley, 8 Allen, 473; Ruloff v. 

V. Pelhani, 118 Mass. 420; Church People, 45 N. Y. 213; Mozv v. 

V. Milwaukee, 31 Wis. 512; Cowley People, 31 Colo. 351. 72 Pac. 1069; 

V. People, 83 N. Y. 464, 38 Am. Keyes v. State, 122 Ind. 527, 23 

Rep. 464. N. E. 1097; Gibson v. State, 53 

In the last case the court says: Tex. Crim. Rep. 349, 370, 110 S. 

"We do not fail to notice ju- W. 41. 
dicially that all civilized countries 



1086 EVIDENCE IN CRTMINAT- CASES. [CHAP. X, 

show, if Otherwise competent, that it is a correct likeness of 
the objects it purports to represent.* But in cases of X-ray- 
photographs only the operator can testify to their correct- 



§ 518m. Photograpns in rogues' gallery. — Photography 
being a trustworthy scientific source through which testimony 
is presented to a court, its largest use, as applied to criminal 
law, is the taking of photographs for the express purpose of 
identification, to be exhibited at police headquarters in towns 
and cities, in the rogues' gallery, so named. These photographs 
are not only so exhibited, but are exchanged among the 
various police and detective bureaus, and afiford a ready and 
a very certain means of identification. Such exhibits are 
subject to the rules of evidence in criminal cases, such as 
proper foundation and identification. So. where a man has 
been convicted of an ofifense, that he has frequently been 
arrested and is an associate of criminals, the facts warrant 

*Mou' V. Proflc, 31 Colo. 351, Enc. Ev. p. 778; Barker v. Perry, 67 

72 Pac. 1069; State v. Hersom, 90 Iowa, 146, 25 N. W. 100; Baustian 

Me. 273. 38 Atl. 160; Com. v. v. Young, 152 Mo. 317, 75 Am. St. 

Chance, 174 Mass. 245, 75 Am. Rep. 462, 53 S. W. 921; Leeds v. 

St. Rep. 306, 54 N. E. 551; Com. Neie 'York Tcleph. Co. 79 App. 

V. Robertson, 162 Mass. 90, 38 N. Div. 121, 80 N. Y. Supp. 114. 

E. 25; Shaw v. State, 83 Ga. 92. In this last case cited the injury 

9 S. E. 768, 8 Am. Crim. Rep. was received in April, 1902, and 

426. the photograph was taken in Oc- 

It lias also been held that where tober of the same year, but there 
such photographs are shown to be was proof that it correctly repre- 
correct representations of a place sented the situation at the time of 
or locality where the transaction the accident, except that the hole 
under investigation took place as shown in it was deeper than when 
it appeared at the time of the the picture was taken. The photo- 
transaction, they are admissible in graph was held admissible, 
evidence without regard to the ^ Stewart, Legal Medicine, § 15. 
time when they were taken. 9 



§ 518m] DEMONSTRATIVE EVIDENCE. 1087 

the taking of his photograph and placing it in the rogues' 
gallery.^ 

Officers have the right to take and use photographs of per- 
sons in jail on a criminal charge for purposes of identification, 
and where it is not shown that an improper use is to be made 
of the same, injunction will not lie to restrain such officers.^ 

It seems, however, that there is no right to place such 
picture in the rogues' gallery of a person who has been ar- 
rested, but not convicted on a criminal charge, or the publica- 
tion of his Bertillon record, where he is not an habitual 
criminal.^ 

^People ex rel. Joyce v. York, ^ Downs v. Swanv, 111 Md. S3, 

27 Misc. 658, 59 N. Y. Supp. 418. 64, 23 L.R.A.(N.S.) 739, 134 Am. 

^Mabry v. Kettering, 89 Ark. St. Rep. 586, 7Z AtL 653. 
551, 117 S. W. 746, 16 A. ^ ?. 
Ann. Cas. 11_3; Mabry v. Ketter' 
ing, 92 Ark. 81, 122 S. W. 115. 



CHAPTER XI. 

DOCUMENTS. 

I. General Considerations. 

§ 519. Definition of the term "document." 

520. Pencil writing sufficient. 

521. Production of documents; reference to other documents; crim- 

inating documents. 

II. Statutes; Legislati\-e Journals; Executu'e Documents, etc. 
§ 522. Recitals in public statutes. 

523. Recitals in private statutes bind only parties thereto. 
523a. Recitals in statutes, when directory and when conclusive, 

524. Journals of legislature admissible. 

525. Executive documents as proof. 
525a. Judicial acts and proceedings. 

III. Nonjudicial Registries and Records. 

§ 526. Official registry receivable in evidence. 

527. Records of public corporations admissible. 
527a. Documents evidencing official acts in general. 

527c. Certificates of copies and transcripts of records. ^ 

527d. Private writings and publications as documentary evidence. 
527e. Admissibility of entries in miscellaneous records. 

528. Books and registries kept by public institutions admissible. 

529. Log book admissible under act of Congress. 

IV. Records and Registries of Birth, ^Marriage, and Death. 

§ 530. When duly kept, marriage and baptismal registries are admis- 
sible to prove facts. 

531. Admissible also when kept by deceased persons in the course of 

their business. 

532. Registry only proves facts that it was the writers duty to record. 

533. Entries must be first hand and prompt. 

534. Certificate at common law inadmissible. 

535. Copies inadmissible. 

536. Family records admissible to prove family events. 
536a. Weight of documents as testimony. 

1088 



DOCUMENTS. 1089 

V. Books of History and Science; Maps. 

§ 537. Approved books of history and geography by deceased authors 
receivable. 
537a. Plats, diagrams, etc., as illustrating testimony. 

538. Books of inductive science not usually admissible. 

539. Books of exact science. 

539a. Testimonial uses of scientific books. 

VI. Official Publications and Public Documents. 

§ 540. Distinction between official publications and those which concern 
private individuals. 
.S41. Newspapers admissible to show certain facts. 

542. But not generally for other purposes. 

543. Knowledge of certain facts published in newspapers may be proved 

inferentially. 

VII. Pictures and Photographs. 

§ 544. Photographs as primary evidence. 
544a. Photographs as illustrating testimony. 
545. Relevancy of documents and photographs. 

VIII. Proof of the Execution of Documents. 

§ 546. Character of proof necessary to show execution of document. 
547 Proof of ancient documents. 
548. Ancient document may be verified by expert. 

IX. Proof of Handwriting. 

§ 549. Handwriting established by the writer himself or his admissions. 

550. Specimens prepared during the trial. 

551. Qualifications of the witness who saw the writing made. 

552. Qualifications of witness by showing familiarity with the hand- 

writing. 

553. Burden of proof as to genuineness of handwriting. 

554. Testing the witness's qualifications on cross-examination. 

555. Proof by comparison not admitted at common law. 

556. Comparison with writings properly in evidence. 

557. Writings admissible as a basis of comparison. 

558. Standards of comparison must be genuine. 

559. Admissibility of expert testimony. 

560. Comparison by expert ; ancient writings. 

561. Photographers' testimony as to handwriting-. 

562. Cross-examination of experts. 

563. Considerations in weighing expert testimony. 

X. Inspection of Documents bv Order of Court. 
§ 564. Production of documents ; materiality. 

564a. Inspection of minutes of grand jury. 

565. Custody of documents. 

566. Production of criminatory documents will not be compelled. 

Crim. Ev. Vol. II.— 69. 



1090 EVIDENCE IN CRIMINAL CASES. [CHAP. XI. 

§ 567. Documents maj' be examined by interpreters and experts. 

568. Evidentiary effect of documentary evidence. 

569. Supplementing documents with parol testimony. 

General Considerations. 



§ 519. Definition of the term "document." — Recent 

statutes having used the term "document" to designate the 
objects of forgery, as well as in some measure of larceny, 
it becomes our duty to inquire, in the first place, what the 
term "document" includes. And the answer is, that a docu- 
ment, in this sense, is an instrument on which is recorded, by 
means of letters, figures, or marks, matter which may be 
evidentially used. In this sense the term "document" applies 
to writings ; to words printed, lithographed, or photographed ; 
to seals, plates, or stones on which inscriptions are cut or 
engraved ; to photographs and pictures ; to maps and plans. 
So far as concerns admissibility, it makes no difference what 
is the thing on which the words or signs offered may be re- 
corded. They may be, as is elsewhere seen, on stone or gems,* 
or on wood (e. g., as is the case with tallies) ^ as well as on 
paper or parchment.^ "Document," it will be therefore seen, 
is a term at once more comprehensive and more exact than 
"instrument in writing," a term at one time generally used 
in the same relation. An "instrument in writing," it might 
well be argued, does not include printed books; and it clearly 
does not include engravings on wood or stone. "Document." 
however, includes not merely books, but any other thing on 
which is impressed a meaning which, emanating from one 
party, is calculated to affect the rights of another party.* 

1 See Wharton, Ev. § 220. ■* As to what constitutes a docu- 

^ Kendall v. Field, 14 ]\Ie. 30, 30 ment within the definition of the 

Am. Dec. 728; Rozcland v. Burton, text, see the following dbses: 

2 Harr. (Del.) 288. Arnold v. Pazvtuxct Valley Water 

3 Wharton, Ev. § 614. Co. 18 R. I. 189, 19 L.R.A. 602. 



§§ 520, 521] 



DOCUMENTS. 



1C91 



§ 520. Pencil writing sufficient. — Ink and paper, or ink 

and parchment, it has been said, are necessary to constitute 
a valid writing, when a writing, as such, is to be proved. But 
the mode of writing is immaterial, if the thing written be 
legible; and it has been frequently held that pencil writing, if 
identified, is sufficient to constitute a writing receivable in 
evidence.^ In fact, some kind of pencils leave marks more 
permanent and ineffaceable than some kinds of ink.^ 

§ 521. Production of documents; reference to other 
documents; criminating documents. — When a document 
is produced in evidence, the requirement of accuracy is com- 
plied with, because the document itself contains all of the 
words. A question may sometimes arise as to whether or 
not the entire document should go in evidence by the party 
producing it. This is a matter that, if questioned, ought to 
be left entirely to the discretion of the trial judge. The better 
rule is that a party offering a document should offer only 



26 Atl. 55; Fitzgerald v. Hedstorm, 
98 III. App. 109; Dederichs v. Salt 
Lake City R. Co. 13 Utah, 34, 44 
Pac. 649; German Theological 
School V. Dubuque, 64 Iowa, 736, 
17 N. W. 153; Barker v. Perry, 67 
Iowa, 146, 25 N. W. 100; Geneva 
V. Burnett, 65 Neb. 464, 58 L.R.A. 
287, 101 Am. St. Rep. 628, 91 N. 
W. 275 ; Record v. Chickasazv 
Cooperage Co. 108 Tenn. 657, 69 
S. W. 334; McCullough v. Olds, 
108 Cal. 529, 41 Pac. 420; Stouter 
V. Manhattan R. Co. 53 Hun, 634, 
6 N. Y. Supp. 163 ; State v. Sazv- 
tclle, 66 N. U. 488, Z2 Atl. 831, 
10 Am. Crim. Rep. 347; Johnson 
Steel Street Rail Co. v. North 
Branch Steel Co. 48 Fed. 191; 
Merrick v. Wakley, 8 Ad. & El. 
170, 3 Nev. & P. 284, 1 W. W. 



& H. 268, 8 Car. & P. 283, 7 L. 
J. Q. B. N. S. 190, 2 Jur. 838; 
Nagle v. Fulmer, 98 Iowa, 585, 67 
N. W. 369. 

Dates and initials carved on 
wood as a document, admissible in 
evidence to identify accused. State 
V. Kent, 83 Vt. 28, 26 L.R.A. (N.S.) 
990, 74 Atl. 389, 20 A. & E. Ann. 
Cas. 1334. 

^Millett V. Marston, 62 Me. 477; 
True V. Bryant, 32 N. H. 241; 
Hill V. Scott. 12 i-:!. 168; Gratz 
V. Beatcs, 45 Pa. 495; May v. 
State, 14 Ohio, 461, 45 Am. Dec. 
548; Remhcrt v. Brozvn, 14 Ala. 
360. 

See Wharton, Ev. § 64. 

2 Compare authorities in Whar- 
ton, Crim. PI. & Pr. § 278a. 



1092 



EVIDENCE IX CRIMINAL CASES. [CHAP. XL 



that part relevant to the question at issue, leaving to the 
other side to use the remainder afterwards.^ And when one 
writing- refers directly or indirectly to another for a fuller 
description, the admissibility of the first writing invoh-es the 
admissibility of the second writing.^ To make the produc- 
tion complete, such second writing should be produced and 
offered at the same time; and this principle also applies to 
another writing not expressly mentioned, but, from its nature, 
necessary to a proper understanding of the first writing.^ The 
admission of a writing involves the admission of all self-dis- 
serving indorsements made thereon by the holder or with his 
permission.'* Whenever a document is offered against a party, 
as containing an admission prejudicing him, he is entitled to 
have the context put in evidence in his defense.* 

In harmony with the underlying principle of our juris- 
prudence, that no man should be compelled to criminate him- 
self, the accused cannot be required to produce any document 
containing evidence that will criminate him.® 

But the rule appears well settled that, upon investigation by 



1 Waller v. State, 102 Ga. 684, 28 
S. E. 284. 

^Nesham v. Selby. L. R. 13 Eq. 
191. 41 L. J. Ch. N. S. 173, 26 
L. T. N. S. 145; Clark v. Crcgo, 
47 Barb. 599; Re Washington Park 
Comrs. 52 N. Y. 131; Blair v. 
Hum, 2 Rawle, 104; Sattcrlce v. 
Bliss. 36 Cal. 489; Jordan v. Pol- 
lock, 14 Ga. 145; post, § 688; 
Wharton, Ev. § 1103. 

3 Thornton v. Stephen. 2 Moody 
& R. 45; Barber v. International 
Co. 73 Conn. 587, 48 Atl. 758; 
FJmore v. Overton, 104 Ind. 548, 
54 Am. Rep. 343, 4 N. E. 197; 
Johnson v. Gi'son, 4 Esp. 21. 

See United States v. Doebler. 
Baldw. 519, Fed. Cas. No. 14.977. 

* Harper v. JVest, 1 Cranch, C. C. 



192, Fed. Cas. No. 6,093; Clarke v. 
Ray, 1 Harr. & J. 318; Gil Patrick 
v. Foster, 12 111. 355 ; Lloyd v. Mc- 
Cliire, 2 G. Greene, 139; Carey v. 
Philadelphia & C. Petroleum Co. 
33 Cal. 694, 1 .Mor. Min. Rep. 
349. 

5 Post, § 688. 

See Early v. State, 9 Tex. App. 
476. 

^ Boyle V. Smithman, 146 Pa. 
255, 23 Atl. 397; Boyd v. United 
States, 116 U. S. 616, 29 L. ed. 
746, 6 Sup. Ct. Rep. 524; State v. 
Davis, 108 Mo. 666, 32 Am. St. 
Rep. 640, 18 S. W. 894. 

See I^ouisz'ille & N. R. Co. v. 
Com. 21 Ky. L. Rep. 239, 51 S. W. 
167. 



§ 522] DOCUMENTS. 1093 

a judicial body, or a nonjudicial body with judicial functions, 
that such body may compel a corporation to produce all docu- 
ments in its possession, and that all records kept by corpora- 
tions are quasi public and must be produced on demand, re- 
gardless of the objection that they may contain criminating 
testimony.' 

II. Statutes; Legislative Journals; Executive Docu- 

MENT.s, etc. 

§ 522. Recitals in public statutes. — A public statute may 
be received to prove the facts which it recites.^ Hence, in 
England it is held that a recital of a state of war, contained 
in a public statute, is evidence of such war; ^ and that a recital 
in a public statute of disturbances and riots is proof of such 
disturbances and riots.^ In this country we have a series of 
cases to the same effect, in which the legislation of Congress 
was referred to, to indicate the extent and duration of the 
late Civil War.* But such proof is only prima facie, and 
may be limited or explained by other testimony.^ 

T Consolidated Rendering Co. v. Mont. 441, 99 Am. St. Rep. 831, 

Vermont, 207 U. S. 541, 52 L. ed. 71 Pac. 602; Re Moser, 138 Mich. 

327, 28 Sup. Ct. Rep. 178, 12 A. 302, 101 N. W. 588, 5 A. & E. Ann. 

& E. Ann. Cas. 658; United States Cas. 31. 

V. Collins, 146 Fed. 553; United Sec Cassatt v. Mitchell Coal & 

States V. Three Tons of Coal, 6 Coke Co. 10 L.R.A.(N.S.) 99, 81 

Biss. 379, Fed. Cas. No. 16,515; C. C. A. 96, 150 Fed. 32. 

People V. Coombs,, 158 N. Y. 532, i See Wharton, Ev. §§ 286-292; 

53 N. E. 527; United States v. JVhifon v. Albany City Ins. Co. 10^ 

Distillery No. sS, 6 Biss. 483, Fed. Mass, 30; Henthorn v. Doe, 1 

Cas.'^o.\A,966; Santa Fe P. R. Co. Blackf. 157; State v. Sartor, 2 

V. Davidson, 149 Fed. 603; Co-op- Strobh. L. 60. 

erative Bldg. & Loan Asso. v. 2 /^^ i- y jj^ Berenger, 3 Maule & 

State, 155 Ind. 463, 60 N. E. 146; S. 67; Wharton, Ev. § 339. 

Washington Nat. Bank v. Daily, 3 /(>^i- y_ Sutton, 4 Maule & S. 532. 

166 Ind. 631, 77 N. E. 53; State ex * Wharton, Ev. §§ 286, ct seq. 

rel. Boston & M. Consol. Copper ^ Rex v. Greene. 6 Ad. & El. 548, 

c'V S. Mm. Co. V. District Ct. 27 1 Nev. & P. 631, W. W. & D. 291. 



1094 EVIDENCE IN CRIMINAL CASES. [CHAP. XI. 

§ 523. Recitals in private statutes bind only parties 
thereto. — Recitals in private statutes are held to be evi- 
dence only so far as concern the parties, not reaching further.* 
As against the party for whose relief the statute was passed,^ 
and as against the State,' such recitals are prima facie proof ; 
but they are not evidence against strangers. 

§ 523a. Recitals in statutes, when directory and when 
conclusive. — It is very doubtful whether or not the legisla- 
tive power can make a recital in a statute that will be con- 
clusive. Legislative recitals are generally merely directory or 
explanatory of purposes and motives, and not determinations 
of fact. The general rule is that such recitals cannot be made 
evidentially conclusive.* 

In criminal law the legislative power is generally broader 
than in dealing with civil matters, in respect to the conclusive- 
ness of recitals defining crimes, and stating facts that may 
become evidentially conclusive. The limitation of the legisla- 
tive power in criminal matters in this respect would seem to 
depend upon the fact that such statute must not in any way 
contravene the constitutional provisions against ex post facto 
laws, or those against cruel or unusual punishments, or the 
deprivation of life and liberty without due process of law.^ 
Within these limits the legislature can create and define what 

^Shrewsbury Peerage. 7 H. L. J. Exch. N. S. 207; Ehnondorff v. 

Cas.lZ; Bemifort V. Smith, A 'Eyich Carmichael. 3 Litt. (Ky.) 472, 14 

450, 19 L. J. Exch. N. S. 97 ; CoweH Am. Dec. 86. 

V. Chambers, 21 Ceav. 619; Mills v ^ State v. Beard, 1 Ind. 460. 

Colchester, 36 L. J. C. P. N. S. 214, 3 Lord v. Bigeloiv, 8 Vt. 460. 

L. R. 2 C. P. 476, 16 L. T. N. S. ^ Birdsong v. Brooks, 7 Ga. 88; 

626, 15 Week. Rep. 955 ; Taylor v. Koehler v. Hill, 60 Iowa, 543, 564. 

Parry, 1 Mann. & G. 604, 1 Scott. 14 X. W. 738, 15 N. W. 609. 

N. R. 576, 9 L. J. C. P. N. S. 298: ^Barker v. People. 3 Cow. 686, 15 

Ballard v. Way. 1 Mees. & W. 529. Am. Dec. 322; Wyuehamer v. Peo- 

2 Gale, 61, 1 Tyrw. & G. 851, 5 L. pie, 13 N. Y. 378,420. 



§§ 524, 525] 



DOCUMENTS. 



1095 



should constitute a crime,^ and recite in such act the facts 
that are conckisive.'* 

§ 524. Journals of legislature admissible. — The jour- 
nals of Congress and of the state legislatures are the proper 
evidence of the action of those bodies,^ and are prima facie 
proof of the facts they recite.^ They are records to be proved 
by inspection,' and cannot ordinarily be varied by parol.'* 

§ 525. Executive documents as proof. — Official public 
documents issued by the executive are to be received as prima 
facie proof of facts stated in them,^ and such is also the case 
with state papers when published under the authority of Con- 
gress,^ with diplomatic correspondence communicated by the 
President to Congress,' with the ordinances of foreign states 
promulgated by Congress,* and with the -proclamations of a 
state executive,^ the authorized reports of state officials,^ and 
the charter of a city,' so far as concerns the state from whkh 
these documents proceed. But it has been held that a report 



^ State V. Kingslcy. 108 Mo. 135. 
18 S. W. 994. 

4 Voght V. State. 124 Ind. 358, 24 
N. E. 680. 

See Snyder v. Bonbright, 123 Fed. 
817. 

See Allen v. Armstrong, 16 Iowa. 

sas. 

1 Wharton, Ev. §§ 290-295; Jones 
\. Randall. Cowp. pt. 1, p. 17, Lofft, 
383, 428. 

2 See Wharton, Ev. § 637. 

3 Coleman v. Dobbins, 8 Ind. 156. 
'^Wabash R. Co. v. Hughes, 38 

111. 176; Covington v. Ludlow, 1 
Met. (Ky.) 296, Wharton, Ev. 
§ 980a. 

1 Tliellitsoii V. Cosling, 4 Esp. 



266; Franklin's Trial, 17 How. St. 
Tr. 638; Talbot v. Seeman, 1 
Cranch, 1, 2 L. ed. 15 ; Ross v. Cut- 
shall, 1 Binn. 399. 

2 Wharton, Ev. § 525; Whit on v. 
Albany City Ins. Co. 109 Mass. 30. 

3 Bryan v. Forsyth, 19 How. 334, 
15 L. ed. 674; Radcliff v. United 
Ins. Co. 7 Johns. 38. 

* Talbot v. Seeman, 1 Cranch, 1. 
2 L. ed. 15; Wctmorc v. United 
States. 10 Pet. 647. 9 L. ed. 567: 
Wharton, Ev. § 297. 

^Lurton v. Gilliam. 2 111. 577, Z?, 
Am. Dec. 430. 

6 Dulancy v. Dunlap, 3 Coldw. 
307. 

7 Hoxvell V. Ruggles, 5 N. Y. 444. 



1096 EVIDENCE IN CRIMINAL CASES. [CHAP. XI. 

of the register of the state land office cannot be received to 
prove that lands have been patented to a railroad company.* 

§ 525a. Judicial acts and proceedings. — Judicial acts, 
proceedings, and records ascertaining and declaring certain 
facts are admissible in other proceedings to prove facts rele- 
vant to the charge then on trial. But such documents, to be 
admissible in themselves, must be a complete and final record 
of the fact sought to be established.^ Thus, on an issue, the 
former conviction and record of the judgment of conviction 
and sentence, from the court wherein the defendant was tried, 
is admissible on trial of another indictment for homicide ; ^'^ 
but a mere entry on a judge's docket, not shown to be in his 
own handwriting, is not a judicial record, though it might 
furnish a basis for a record.^ 

Where records of fomier convictions become material, as. 
for instance, where a second conviction mcreases the penalty 
or the grade of the offense, such records, aided by proof of 
identity, are admissible to establish the former conviction : * 
but where the accused had appealed from a judgment of con- 
viction, and the appeal had not been determined, the record 
of such conviction was not admissible for the purpose of 
proving the second offense.* 

^Gordon v. BuckucU, 38 Iowa. 118 Ga. 55, 44 S. E. 873; WUUam^ 

438. V. People, 196 111. 173, 63 N. E. 681 : 

A pardon granted by an execu- State v. Smith, \29 Iowa. 709. 4 

tive, under the great seal of the L.R.A.(N.S.) 539. 106 N. W. 187, 

state, is a document that is evidence 6 A. & E. Ann. Cas. 1023 ; State v. 

per se. United States v. Wilson, Manicke, 139 Mo. 545. 41 S. W. 

Baldw. 78, Fed. Cas. No. 16,730. 223 ; State v. Cox, 69 N. H. 246, 41 

1 As to admissibility in evidence Atl. 862 (complaint with clerk's in- 

of records of other states, see note dorsement of plea of guilty and fine 

in 5 L.R.A.(N.S.) 938. imposed) ; BuUard v. State, 40 Tex. 

la Williams v. State, 130 Ala. 31, Crim. Rep. 270, 50 S. W. 348. 

30 So. 336. See Thomas v. Com. 22 Gratt. 

^ Smith V. State, 62 Atl. 29. 912. 

^People V, Hettick, 126 Cal. 425, ^ State v. Volmer. 6 Kan. 379. 
58 Pac. 918; McWhorter v. State, 



§ 525a] DOCUMENTS. 1097 

On an issue of insanity as a defense to a crime, the record 
of the proceedings in a probate court is receivable in evi- 
dence;^ but where such record relates to civil proceedings 
only, it is not admissible on a criminal issue. ^ 

The issuance and return of a subpoena, although a judicial 
act, is not admissible to establish the nonexistence of the per- 
son subpoenaed in the county to which the subpoena issued ; '^ 
nor is such document admissible to show that the witnesses 
subpoenaed were witnesses to the crime charged,' but it is 
admissible to show that the witnesses named could not be 
served, on account of absence.^ 

Judicial entries, orders, proceedings, and reports of a semi- 
judicial or semiofficial character are admissible to establish 
the facts recited therein.^" But the minutes of evidence taken 
before a grand jury are not competent as independent evi- 
dence, without the testimony of the grand jurors who were 

^ Siatc V. McMuvry, 61 Kan. 87, dence of flight); Com. v. Meehan. 

58 Pac. 961. ' 170 Mass. 362, 49 N. E. 648 (police 

^ Davis V. State, 44 Fla. 32, 32 court docket ; People v. Kuney, 

So. 822; Johnson v. State, 57 Fla. 137 Mich. 436, 100 N. W. 596 (com- 

18, 49 So. 40. mitment admissible to prove that 

"^People V. Lee. 128 Cal. 330, 60 party was legally subject to control 

Pac. 854. of a detention home) ; State v. 

^ Logan v. State, — Tex. Crim. Shaw, 73 Vt. 149, 50 Atl. 863, 13 

Rep. — , 53 S. W. 694. Am. Crim. Rep. 51 (docket entries 

8 People V. Barker, 144 Cal. 705, admissible to show court's action 

78 Pac 266. with reference to committing ac- 

^0 People V. Rodley, 131 Cal. 240, cused) ; May v. State, 15 Tex. App. 

63 Pac. 351 (in perjury, admitting- 430 (notary's certificate of protest 

affidavit of publication) ; Thompson admissible to show protest of a 

V. State, 120 Ga. 132, 47 S. E. 566 draft in a prosecution of one ac- 

(teachers' school report) ; Barton v. cused of obtaining money on the 

State, 154 Ind. 670, 57 N. E. 515 same by false representations ; .S"/a/c 

(entry showing bail bond forfeited, v. Bringgold, 40 Wash. 12, 82 Pac. 

AS evidence of flight) ; State v. Kes- 132, 5 A. & E. Ann. Cas. 716 (com- 

ner. 72 Kan. 87. S2 Pac. 720 (entry plaint filed in justice's court), 
of forfeiture of bail bond, as evi- 



1098 EVIDENCE IN CRIMINAL CASES. [CHAP. XL 

present, or of the witnesses who testified to the facts ; " nor 
a memorandum in a court minute-book, showing dismissal 
of an indictment and a rereference to the grand jury, to show 
continuous prosecution.^^ 

III. Nonjudicial Registries and Records. 

§ 526. Official registry receivable in evidence. — Where 
a statute requires the keeping of an official record for the 
public use, by an officer duly appointed for the purpose, and 
subject not merely to private suit but to official prosecution 
for any errors, such record, so far as concerns entries made 
in it in the course of business, is admissible in the courts of 
such state as prima facie proof of the facts it contains. Nor 
is it necessary to verify such record by the oath of the person 
keeping it. That it is directed by statute to be kept for the 
public benefit, and that it is kept, so far as appears on its 
face, with regularity and accuracy, entitles it to be received 
in evidence, and throws the burden of impeaching it on the 
opposite side. To make the record itself evidence, it is only 
necessary that it be produced, and that it should be proved 
to have come from the proper depositary.^ But such docu- 
ments, to be in evidence, must be kept by public officers in 
pursuance of an official duty. Hence it has been held in a 
Maryland case, that police records, kept by the detective 
police of a city, in order to show charges made against par- 
ticular individuals, cannot be put ip evidence by a party so 
accused, in order to show the injury done him by being 
charged with theft; such records not being prescribed by stat- 
ute, nor in any way traceable to the party sued for the injury.' 

^'^ State V. Porter. 105 Iowa, 677. i Wharton, Ev. § 526; State v. 

75 N. W. 519. Chambers, 70 Mo. 625. 

'^^ Kentucky Gravel Road Co. v. ^ Garvey v. Wayson, 42 Md. 187. 
Com. 16 Ky. L. Rep. 153. 



§§ 527, 527a] documents. 1099 

At the same time, entries of this class, though inadmissible 
as public records, may become evidence when made by a de- 
ceased person against his interest,^ or, as will be seen, when 
in discharge of a business duty.* 

§ 527. Records of public corporations admissible. — Not 
merely are the records of public officers, national or state, 
when kept in accordance with statutes, thus admissible, but 
admissibility has been extended to official records duly kept 
by municipal or other corporations, which, as to third parties, 
are prima facie evidence of the facts duly entered by officers 
of such bodies, in the course of their duties.^ Even a public 
officer's entry, when in the regular discharge of his duties, in 
a book he is by law required to keep, is prima facie evidence 
in his own favor when the performance of the acts registered 
is at issue.^ 

§ 527a. Documents evidencing official acts in general. — 

Documents evidencing official acts or proceedings are admis- 
sible in evidence when kept in the line of official duty, to 
establish facts relevant in the trial of criminal charges. Thus, 
on the trial of a clerk for embezzling postoffi.ce funds, his 
quarterly report, shown to be in his handwriting, is admissible 
to establish the amount of money chargeable to his depart- 
ment;^ a jail record is admissible to show that accused was 
discharged from jail about the time the crime charged against 
him was committed;^ a clerk's certificate containing a brand 

3 Wharton, Ev. § 226 ; Reg. v. Com. v. Berney, 28 Pa. Super. Ct. 
Buckley, 13 Cox, C. C. 293. 61 ; State v. Hall 16 S. D. 6, 65 

4 Wharton, Ev. § 238; post, §§ L.R.A. 151, 91 N. W. 325; //cm/^fo;! 
527-530. V. State, 111 Wis. 127, 86 N. W. 

1 Wharton. Ev. § 527. 596, 12 Am. Crim. Rep. 657; State 

2 Wharton, Ev. § 527. v. Dudenhcfer, 122 La. 288, 47 So. 
^McBride v. United States, 42 C. 614. 

C. A. 38, 101 Fed. 821; Lorens v. ^ State v. Kennedy, 154 Mo. 268, 

United States, 24 App. D. C. 2Z7 ; 55 S. W. 293; People v. Bradbury, 



1100 



EVIDENCE IX CRI.MIXAL CASES. [CHAP. XI. 



recorded in his office is admissible as evidence of the recorded 
brand ; ' a conviction of larceny may be proved by the trial 
docket where that is the only record of the court, and is the 
one in which the final judgments are entered;* the record of 
the accused's measurements, taken as required by the depart- 
ment of justice, is admissible, though the person making entry 
did not make the measurement, but took it down from dicta- 
tion;^ the records of the town clerk are admissilie to prove 
the want of a license to sell intoxicating liquors.^ 

But where records are required to be kept, a mere certificate 
containing a summary of their contents, in the absence of a 
statute authorizing it, is not admissible in evidence, but the 
fact should be proved by certified copies of the record.' 

§ 527c. Certificates of copies and transcripts of 
records. — When properly pro^■ed, original documents are 
always admissible, but when their absence is properly ac- 
counted for, or thev are such records and documents that the 



155 Cal. 808, 103 Pac. 215 (judg- 
ment roll). 

^ Bayless v. State, 121 Tenn. 75, 
113 S. W. 1039; Garrett v. State. 
42 Tex. Criin. Rep. 521. 61 S. W. 
129; Wilson v. State, 3 Tex. App. 
206. 

See Pilgrim v. State, 3 Okla. 
Crim. Rep. 49, 104 Pac. 383 (judge's 
address) ; Seaborn v. State, — Tex. 
Crim. Rep. — , 90 S. W. 649. 

4 Gandy v. State, 86 Ala. 20, 5 So. 
420. 

5 United States v. Cross, 9 Mack- 
ey. 365. 

^ Com. V. Foss. 14 Gray, 50. 

See Com. v. Bolkom, 3 Pick. 281. 

But a stub book showing the is- 
.<uance of a license, its date, and 
expiration, is not admissible to 



prove that the license actually is- 
sued. Earl V. State, 44 Tex. Crim. 
Rep. 493. 72 S. W. 376. 

"^ State V. Ruth, 21 Kan. 583; Goff 
V. Com. 5 Ky. L. Rep. 325 (certifi- 
cate of votes) ; People v. Lambert, 
5 Mich. 349, 72 Am. Dec. 49 (mar- 
riage certificate) ; State v. Missio. 
105 Tenn. 218, 58 S. W. 216 (list 
of corporations). The return of <i 
search warrant is not admissible to 
show that the accused kept intoxi- 
cating liquors with the intent to sell 
the same illegally. State v. Costa, 
78 Vt. 198, 62 At'l. 38; Com. v. Mc- 
Garry. 135 Mass. 553 (minutes of 
a vote) ; State v. Behrman, 114 N. 
C. 797, 25 L.R.A. 449, 19 S. E. 220 
(marriage certificate). 



§ 527c] DOCUMENTS, 1101 

original is not required to be produced, certified copies of the 
same are generally admissible in evidence. 

Where the question is controlled by statute, the provisions 
of the statute must be complied with, but, in the absence of 
a statute, the general rule prevails in the United States that 
the lawful custodian of a judicial document has the authority 
to certify the same, either under his hand and seal as such 
custodian, or under the seal of the office or court from which 
the copy is taken, and such copies are usually received in evi- 
dence without further proof. ^ Such copies are called "ex- 
amined," ''certified," "exemplified," and "official." according to 
the manner in which they are authenticated. A sworn or an 
examined copy difi^ers from a certified copy in that the 
official custodian of the record gives out the copy certified 
or attested by him, while the sworn or examined copy is made 
by some other person than the custodian, and sworn to by 
such person, testifying on the witness stand. 

Thus, where a clerk of a court is made custodian of the 
coroner's documents, a copy of such documents, certified by 
such clerk, is admissible, without producing the original ; ^ 
so proof of the contents of an indictment pending in another 
county can be made by a copy of such indictment duly certi- 
fied ; ^ and a paper purporting to be a copy is sufficiently 
authenticated where the clerk uses the words, "A copy. At- 
test." * 

In accordance with the general rule, certified copies and 
transcripts are admissible where it is evident that they are 
certified from the proper custody,^ but, in a prosecution for 

^ State V. Banks, 106 La. 480, 31 So. 273 (transcripts of clerk's rc- 

So. Si. ports) ; Sandford v. State, 11 Ark. 

^ State V. Roland, 38 La. Ann. IS. 328 (a transcript of judgment pro\ ■ 

3 Childs V. State, 55 Ala. 28. ing original sentence) ; Redman v. 

* Com. V. Qiiigley, 170 Mass. 14, State, 28 Ind. 205 (transcript of rec 

48 N. E. 782. ord to prove pendency of prosecii 

5 Stanley v. State, 88 Ala. 154, 7 tion, appearance, and a finding of 



1102 



EVIDENCE IN CRIMINAL CASES. [CHAP. XI. 



bigamy, a copy of a marriage registry showing the first mar- 
riage is not admissible where it does not first appear that 
the keeping of the registry was required by law,^ nor is a 
transcript of such marriage in a foreign country prima facie 
evidence of marriage, without proof of the law requiring such 
registry to be made and kept.''^ 

§ 527d. Private writings and publications as docu- 
mentary evidence. — Private writings, such as letters, tele- 
grams, memoranda; and private publications, such as circulars 
or newspaper articles, when properly proved, are admissible 
in evidence in criminal cases, when relevant to the issues on 
trial. Such writings and publications are documents, within 
the definition of that word as used in this work. The rule of 
admission is not extended in favor of such writings and pub- 
lications, because, as a predicate of their admission, they must 
be duly authenticated and proved with the same solemnity as 
formal writings. But, when this condition is satisfied, the 



guilty) ; Hudgens v. Com. 2 Duv. 
239 (judgment of conviction admis- 
sible to prove that prisoner was in 
legal custody; State v. Elam. 21 Mo 
App. 290 (certified copy of dupli- 
cate registry issued by board of 
pharmacy admissible in prosecution 
for selling liquor vi^ithout prescrip- 
tion) ; Mclnerney v. United States, 
74 C. C. A. 655, 143 Fed. 729 (veri- 
fied copy of ship's manifest) ; Here- 
ford V. People, 197 111. 222, 64 N. 
E. 310 (transcript of testimony of 
official reporter in prosecution for 
perjury) ; State v. Tripp, 113 Iowa, 
698, 84 N. W. 546 (certified copy of 
deed admitted over objection that it 
was not the deed offered in the in- 
dictment, where it only differed as 
to name of the grantee and his resi- 



dence, on prosecution for false rep- 
resentations ; Com. V. Neehan, 170 
Mass. 362, 49 N. E. 648 (entries in 
police court docket) ; People v. 
Bradbury, 155 Cal. 808, 103 Pac. 215 
(judgment roll in civil action admis- 
sible to prove jurisdiction, testimo- 
ny, and its materiality on prosecu- 
tion for perjury alleged to have been 
committed in such case) ; Baker v. 
State, 56 Te.x. Crim. Rep. 16, 118 
S. W. 542 (marriage license nnd re- 
turn thereon admissible without 
further attestation of official char- 
acter of person performing the 
ceremony than the statement fol- 
lowing the official signature). 

^ State \\ Dooris. 40 Conn. 145. 

' Stanglein v. State, 17 Ohio St. 
453. 



527cl] 



DOCUMENTS. 



1103 



admissibility of such writings is dependent on their relevancy 
to the issues joined, and not upon their scope or character, as 
both court and jury are entitled to have all the aid that such 
evidence can legally bring to charge on trial. 

Such writings are introduced not to determine the reciprocal 
rights of parties under the writing, but as collateral evidence 
merely, tending to prove or disprove some fact in issue. The 
instances in which such writings are properly in evidence 
are to be determined from the issues in the concrete case, as 
is shown by the decisions.^ The reception of such evidence 



^ Com. V. Robinson, 1 Gray, 555 
(newspaper containing time-table, 
to determine the arrival of a stage- 
coach, admissible ; Com. v. Hil- 
dreth, 11 Gray, 327 (newspaper con- 
taining article by defendant, con- 
cerning sales of liquor, admissible) : 
State V. Porter, 26 Mo. 201 (printed 
blank returns admissible, as show- 
ing course of duty of defendant as 
clc-k of a corporation ; Britt v. 
State, 21 Tex. App. 215, 71 S. W. 
255 (bill of sale admitted on trial 
for theft of cattle; United States 
V. Dunbar, 60 Fed. 75 (telegram 
from prosecuting witness to de- 
fendant admitted to corroborate 
verbal admissions of defendant to 
such witness) ; Burton v. State, 107 
Ala. 108, 18 So. 284 (on homicide 
trial, defendant's letters concerning 
matters he desired to conceal, found 
on person of deceased, admissible) ; 
Riimpli V. State, 91 Ga. 20. 16 S. E. 
104 (unsigned letter written by ac- 
cused charged with larceny, ad- 
dressed to owner of property, ad- 
missible ; IVestbrook v. People, 126 
111. 81, 18 N. E. 304 (letter con- 
taining threats to kill, written to 
deceased's brother, by defendant. 



admitted as against general objec- 
tions) ; Simons v. People, 150 111. 
66, 36 N. E. 1019 (letters written by 
defendant to deceased, but found 
on defendant's person, and not 
proved to have been delivered, held 
admissible to show relations be- 
tween deceased and defendant ; 
S trick lin V. Com. 83 Ky. 566 (letters 
written by a woman held as an ac- 
cessory to the accused, showing 
guilty relations, admissible; State v. 
Watson, 63 Me. 128 (on trial for 
arson, letter written by defendant 
to show ownership, admissible) ; 
Com. V. Jeffries, 7 Allen, 548, 83 
Am. Dec. 712 (telegram admitted 
as evidence of defendant's declara- 
tions) ; Com. V. Vosburg, 112 Mass. 
419 (telegram admitted as relevant, 
to explain conversation between 
police officer and defendant) ; State 
V. Adams, 108 Mo. 208, 18 S. W. 
1000 (letters written by prosecuting 
witness to defendant admissible in 
corroboration of charges ; State v. 
Winningham, 124 Mo. 423, 27 S. 
W. 1107 (unsigned letters admit- 
ted) ; State v. Sibley, 131 Mo. 519. 
31 S. W. 1033 (letters dictated by 
defendant, but signed by the wife, 



1104 



EVIDENCE IX CRIMINAL CASES. [CIIAP. XI. 



rests ill the discretion of the trial court, and his ruling will not 
be disturbed unless an abuse of his discretion is shown.^ But 
letters will not be admitted as evidence, although written and 
mailed to the accused, without proof that the accused actuall\- 
received them.^ Also, letters written by a third party, stating 



admissihle against defendant! ; 
People V. Higgiiis. 127 Mich. 291, 
86 N. W. 812 (story in defendant's 
handwriting, found in box he had 
stolen, and bearing a close resem- 
blance to the facts of a murder for 
which he was being tried, admit- 
ted) ; Territory v. Claypoo!, 11 N. 
M. 568, 71 Pac. 463 (bill of sale 
admitted on question of purchasing 
stolen stock, even where such bill 
of sale was not witnessed and ac- 
knowledged as required by law) ; 
Seaborn v. State, — Tex. Crini. 
Rep. — , 90 S. W. 649 (bill of sale 
admitted) ; State v. IVetherell. 70 
Vt. 274, 40 Atl. 728 (magazine 
mailed by accused to prosecutrix 
admissible to show criminatory 
communication) ; Williams v. State, 
123 Ala. 39, 26 So. 521 (letter writ- 
ten by defendant, after robbery, 
stating that he had $15, admissible, 
with other evidence, to prov^^ 
amount taken) ; Thatlieiiii v. State, 
38 Fla. 169, 20 So. 938 (letters 
found in letter files admitted on 
question of agency) ; Batman v. 
Stale, 48 Fla. 21, 37 So. 576 (letters 
tending to contradict a witness, 
relative to the issue, should be ad- 
mitted) ; State v. Reiiaud. 50 La. 
Ann. 662. 23 So. 894 (letter written 
by prisoner in jail, admitted against 
him) ; Com. v. Burton. 183 Mass. 
461, 67 N. E. 419 (in false pre- 
tenses, proof of telegram referring 



to defendant admitted) ; State v. 
Armstrong, 106 Mo. 395, 13 L.R.A. 
419, 27 Am. St. Rep. 361, 16 S. W. 
604 (pasting the letter in, as a part 
of an indictment, does not destroy 
its character as evidence in the 
case) ; State v. Soper, 148 Mo. 217, 
49 S. W. 1C07 (letter containing 
confession, admissible) ; People v. 
Fletcher, 44 App. Div. 199, 60 X. 
Y. Supp. 777, 14 N. Y. Crim. Rep. 
328 (two letters, one in the form 
of an advertisement oflfcring a re- 
ward for stolen prupcrty, and the 
other offering to return stolen 
property, apparently in the same 
handwriting, admissible on charge 
of larceny against the defendant) ; 
State V. McDanicl. 39 Or. 161. 65 
Pac. 520 (letter in defendant'-, 
handwriting, found in deceased's 
bedroom, admitted) ; State v. 
Marsh, 70 Vt. 288, 40 Atl. 836 (note 
written by one codcfendant to the 
other, while in jail, admitted) ; 
Monteith v. State, 114 Wis. 165, 89 
N. W. 828 (letter from defendant 
to another, admissible to show re- 
lations between them). 

^Goode V. State, 50 Fla. 45. 39 
So. 461; People v. Mayne, 118 Cal. 
516, 62 Am. St. Rep. 256, 50 Pac. 
654 ; State v. Eldred. 8 Kan. App. 
625, SO Pac. 153; Turner v. Com. 
25 Ky. L. Rep. 2161, 80 S. VV. 197. 

^ James V. State, 40 Tex. Crim 
Rep. 190, 49 S. \\'. 401 ; Dawson v. 



§ 527e] 



DOCUMENTS. 



1105 



that he, and not the defendant, was guilty of the crime, are 
not admissible, unless preserved in the form of a deposition 
or proved by the sworn testimony of the writer.* 

§ 52 7e. Admissibility of entries in miscellaneous rec- 
ords. — In addition to books of account kept in the usual 
course of business, semiofficial records, and other documents 
of a generally recognized character, miscellaneous records, 
l)ooks, memoranda, and the entries therein, are admissible, 
when shown to be relevant to the issue and properly authen- 
ticated and a proper predicate laid for the introduction, as 
evidence, of collateral facts that may tend to establish or 
disprove the charge on trial.^ 



State, 38 Tex. Crim. Rep. 9, 40 S. 
W. 731; Ford v. State, — Tex. 
Crim. Rep. — , 56 S. W. 338; Peo- 
ple V. Lee Dick Lung, 129 Cal. 491. 
62 Pac. 71 ; State v. Shive, 58 Kan. 
783. 51 Pac. 274. 

^Mays V. State, 72 Neb. 723, 101 
N. W. 979 ; People v. Greenfield, 23 
Hun, 454. 

1 Davis V. State, 91 Ga. 167, 17 S. 
E. 292 (car inspector's notes of 
car numbers admitted to identify 
brasses stolen from them) ; People 
V. Brow, 90 Hun, 509, 35 N. Y. 
Supp. 1009 (school teacher's record 
admissible to prove complainant'^; 
age, on prosecution for abduction) ; 
People V. McLaughlin, 2 App. Div. 
419, 37 N. Y. Supp. 1005 (on prose- 
cution of police officer for extor- 
tion, there being evidence that B 
was defendant's agent, an entry in 
the books of S showing moneys 
paid to defendant per B admissi- 
ble to show date and payment) ; 
Moots V. State, 21 Ohio St. 653 
Crim. Ev. Vol. H.— 70. 



(railroad freight book entries ad- 
missible to show a particular ship- 
ment) ; Shriedley v. State, 23 Ohio 
St. 130 (check slips, showin;,;- 
transfer of goods from one car to 
another, with car numbers aud de- 
scriptive mark of the goods, admis- 
sible to show that the goods were 
marked and shipped) ; State v. 
Mace, 6 R. I. 85 (on prosecution 
for keeping a cock pit, entry on 
the cash book of the gas company, 
showing payment by defendant for 
gas furnished at the cock pit, ad- 
missible to establish the fact of 
keeping it the date referred to) ; 
Rogers v. State, 26 Tex. App. 404, 
9 S. W. 762 (on indictment for 
arson, entries in the books of ac- 
cused, in his own handwriting, rep- 
resenting merchandise pretended to 
have been received just before the 
fire, admissible in corroboration of 
witness who testified that defend- 
ant said he had fixed his books sr- 
as to show merchandise equal to 



1106 



EVIDENCE IN CRIMINAL CASES. [CHAP. XI. 



But such private writings are not admissible where the 
witness who testified to the fact distinctly recalls the transac- 
tion, independently of the entry ; ^ nor where such entries are 



the amount of insurance) ; Sliiiui V. 
Com. 32 Gratt. 899 (corporation's 
annual report admissible to show 
disposition of certain checks by ac- 
cused) ; White v. United States. 
164 U. S. 100, 41 L. ed. 365, 17 Sup. 
Ct. Rep. 38 (county-jail record, 
showing dates of receiving and 
discharging prisoner, admissible, 
even where not kept under stat- 
ute) ; Easton v. Iowa, 188 U. S. 
220, 47 L. ed. 452, 23 Sup. Ct. Rep. 
288, 12 Am. Crim. Rep. 522 (books 
of bank admissible to show receipt 
of deposit and bank officer's knowl- 
edge when bank was insolvent) ; 
Mallett V. North Carolina, 181 U. 
S. 589, 45 L. ed. 1015, 21 Sup. Ct. 
Rep. 730, 15 Am. Crim. Rep. 730 
(entries in books in legal posses- 
sion of another person competent 
against accused) ; Brown v. United 
States, IZ C. C. A. 187. 142 Fed. 1 
(bank books admissible to show 
amount of indebtedness due it on 
issue of insolvency of a corpora- 
tion) ; Peters v. United States, 36 
C. C. A. 105, 94 Fed. 127 (county 
treasurer's cash book admitted on 
question of whether or not a de- 
posit had been made in bank) ; 
Jones V. State. 99 Ga. 46, 25 S. E. 
617 (stub book of tickets, contain- 
ing same figures as the tickets 
themselves, admissible to prove 
weights, where the ticket itself had 
been lost but properly accounted 



for) ; Cook v. People, 177 111. 146, 
52 N. E. 273 (hotel register admis- 
sible to show that party had regis- 
tered under an assumed name) ; 
Simpson v. State, 45 Tex. Crim. 
Rep. 320, 77 S. W. 819; State v. 
Hairston, 121 N. C. 579, 28 S. E. 
492 (entries in Bible admissible to 
prove age of child) ; Collins v. 
State, 39 Tex. Crim. Rep. 441, 46 
S. W. 933 (book containing entries 
of purchases of live stock admissi- 
ble to show erasures and change 
of original dates) ; Smith v. State, 
— Tex. Crim. Rep. — 73 S. W. 
401 (physician's book of original 
entry, in possession of his son after 
his death, admissible on question 
of age of prosecutrix) ; Jackson v. 
State, 49 Tex. Crim. Rep. 248, 91 
S. W. 574 (delivery book of ex- 
press company admissible to show 
delivery of package) ; State v. 
Powers, 72 Vt. 168, 47 Atl. 830 
(when entry on the book of a liv- 
ery-stable keeper was offered to 
establish an alibi, it was proper to 
admit the page in evidence, to ex- 
plain interlineations and changes) ; 
Secor v. State, 118 Wis. 621, 95 N. 
W. 942 (on prosecution of an ac- 
countant, books for the keeping of 
which he was responsible, though 
not in his handwriting, are admissi- 
ble against him). 

^People V. McLaughlin, 150 N. 
Y. 365, 44 N. E. 1017. 



§ 528] DOCUMENTS. 1107 

made up from a book of original entries and other memoran- 
da;^ nor where the defendant had no knowledge of, and did 
not consent to, an entry in the books of his employer.* 

Statements made by accused in a criminal matter cannot l)e 
proved by a written memorandum of them made by a witness 
at the time.^ Where there was a prosecution for perjury in 
falsely verifying the list of property, the assessor's notes of 
the property returned by accused were not admissible to show 
amount of property returned by him.* 

On a criminal prosecution, a train register is not competent 
to prove the time of arrival and departure at the station on 
the night of the alleged crime, where the conductor who made 
it was not called and the agent had no actual knowledge of 
the time.' 

Entries on the books of a railroad company, made by an 
agent still living, but absent, are not admissible in a criminal 
prosecution to prove statements therein entered.* 

§ 528. Books and registries kept by public institutions 
admissible. — When a registry of current events kept in a 
public voluntary institution is the only evidence attainable of 
a fact in litigation, such registry, on the principle that the 
best evidence is admissible evidence,^ may be admitted as 
prima facie proof. In accordance with this view, a record 
of weather kept at such a public institution has been held 
admissible to prove the temperature on a day as to which 

^Donner v State, 72 Neb. 263, ^ People v. Mitchell, 94 Cal. 550, 

117 Am. St. Rep. 789, 100 N. W. 29 Pac. 1106. 

305. ^ State v. Thomas, 64 N. C. 74; 

estate V. Ames, 119 Iowa, 680, 94 Wade v. State, 37 Tex. Crim. Rep. 

N. W. 231. 401, 35 S. W. 663. 

6 People V. Elyea, 14 Cal. 144. i See Wharton, Ev. §§ 72, 170- 

« People V. Quinn, 18 Cal. 122. 172. 



1108 EVIDENCE IN CRIMINAL CASES. [CHAP. XI. 

witnesses could not accurately speak.^ Such entries, however, 
must be subjected to the same tests as to genuineness and 
primariness, as will presently be noticed in respect to parish 
records. 

§ 529. Log book admissible under act of Congress. — 

Under certain acts of Congress, log books may be evidence of 
the facts they state. Their admissibility, however, is limited 
to the points the statutes designate; and they must be identi- 
fied as duly kept. But independent of the statutory provisions, 
a log book is admissible if kept by a deceased officer when in 
the performance of his duties, or by an officer whose at- 
tendance is unobtainable.^ 

IV. Records and Registries of Birth^ Marriage, and 

Death. 

§ 530. When duly kept, marriage and baptismal regis- 
tries are admissible to prove facts. — An official registry, 
as we have already seen, is admissible, when kept in con- 
formity with law and when duly authenticated, to prove such 
facts as the law requires to be registered. It follows that 
whenever a baptismal, marriage, or burial registry is kept 
in accordance with statute, such registry, being duly authen- 
ticated, is admissible to prove the facts which are within the 
statutory authority.^ Even though there be no enabling stat- 

^De Arnwnd v. Ncasmith, 32 Laic, 3 Starkie, 63, 23 Revised Ren. 

Mich. 231. 757; May v. May, 2 Strange, 1073; 

See The Catherine Maria. L. R. Draycott v. Talbot, 3 Bro. P. C. 

1 Adm. & Eccl. 53, 12 Jiir. N. S. 564; Doe ex dent. IVollasfon v. 



380. 



Barnes, 1 Moody & R. 389. 



See supra, §§ 526, 527; Sisson v. See State v. Wallace, 9 N. H. 

Cleveland & T. R. Co. 14 Mich. 515; State v. Horn, 43 Vt. 20; 

497, 90 Am. Dec. 252. Jackson v. People, 3 111. 232; Glenn 

1 Wharton. Ev. § 529. v. Glenn. 47 Ala. 204. 

1 Gilbert, Ev. 3d ed. 77; Wihen v. See Kopke v. People, 43 Mich. 41, 



§ 530] 



DOCUMENTS. 



1109 



ute, there is much strength in the position that as the canon 
law, so far as concerns the law of marriage, is part of English 
common law,^ and as parish records are public records by the 
canon law, they are to be regarded by us as public records, and 
hence admissible in evidence, by our own common law.^ Yet 
as this position is open to doubt, and is in conflict with 
English rulings excluding registries by dissenting religious 
bodies, unless supported by proof aliunde as to their accuracy ; * 
it is proper, in order to authenticate the facts stated in such 
records, to call the person by whom they were made, if living, 
to testify to their accuracy, or if he be dead, to prove that the 
entries were made by him in discharge of his duties. It 
should at the same time be remembered that a copy of a for- 
eign registry will be admitted wherever such registry is kept 
in accordance with the law of the place of entry,^ supposing 
that the identity, authority, and signature of the registrar be 
duly proved.^ 



4 N. W. 551, cited infra, § 533; 
Bin V. Barlow, 1 Dougl. K. B. 172 ; 
Lewis V. Marshall, 5 Pet. 470, 8 L. 
ed. 195 ; Sturla v. Frcccia. 40 L. T. 
N. S. 861. 

2 See Wharton, Confl. L. §§ 169 
et seq. 

3 Stainer v. Droitzvich. 1 Sa'llc. 
281, S. C. 12 Mod. 86, Holt, 290. 
Kingston v. Lesley, 10 Serg. & R. 
383; American L. Ins. & T. Co. v. 
Rosenagle, 77 Pa. 507; Chouteau v. 
Chevalier, I Mo. 343. 

See Kennedy v. Doyle, 10 Allen, 
165, cited infra, § 531. 

4 Wharton, Ev. § 653. 

^ Re Earldom of Perth, 2 H. L. 
Cas. 865, 873, 874, 876, 877; Abbo'J 
V. Abbott, 29 L. J. Prob. N. S. 57 ; 
4 Swabey & T. 254 ; American L. 
Ins. & T. Co. V. Rosenagle, 77 Pa. 



507; Huet v. Le Mestirier, 1 Cox, 
Ch. Cas. 275 ; Cood v. Cood, 1 Curt. 
Eccl. Rep. 766. 

^ State V. Dooris, 40 Conn 145. 

Where a parent was not able to 
read or write, but testified that 
from time to time he got nei.ghbors 
to record the dates of the birth of 
his children, on a piece of paper 
which he kept for that purpose, and 
it was identified by the parent and 
by one of the neighbors who had 
made one of the records on the 
paper, such record was held compe- 
tent to show^ the age of prosecutrix. 
State V. Neasby, 188 Mo. 467. 87 S. 
W. 468. 

Baptismal certificate not compe- 
tent to prove date of birth. State 
V. Snover, 63 N. J. L. 382, 43 Atl. 
1059, 11 Am. Crim. Rep. 655. 



1110 EVIDENCE IN CRIMINAL CASES. [CHAP. XI. 

§ 531. Admissible also when kept by deceased persons 
in the course of their business. — As a general rule, entries 
kept by a deceased person in the course of his business are 
admissible as prima facie proof of all facts relating to such 
business, in all cases in which the entries bear genuineness 
on their face, and were made at or near the time of the 
events they register. Independently of statutory prescriptions, 
the entries regularly made in his own books, or his official 
books, by a clergyman, or by the recording officer of a parish, 
or by the proper functionary of a religious society, are, after 
his decease, evidence of all facts which it was his duty of- 
ficially to enter,^ 

§ 532. Registry only proves facts that it was the writer's 
duty to record. — A registry of baptisms, however, has been 
ruled not to be proof of the alleged time of the child's birth, 
but only that he was born at the date of the baptism ; ^ though 
it seems that it may be used, with other indicatory evidence, 
to show the place of birth,^ to indicate age,^ and to infer illegiti- 
macy.* In Massachusetts it has been accepted, cumulatively 
with other evidence, to prove the date of birth.* Where. 
however, the statute provides that births shall be registered, 

» Wharton, Ev. § 654; Kennedy & Ad. 968, 3 Nev. & AI. 37, 3 L. T. 

V. Doyle. 10 Allen, 165. Mag. Cas. N. S. 50; Clark v. Trin- 

^Rex V. Clapham, 4 Car. & P. ity Church, 5 Watts & S. 266. 

29; Burghart v. Anqerstcin. 6 Car. ^ Reg. v. Weaver. L. R. 2 C. C. 

& P. 690 ; IVihen v. Lotv. 3 Starkic, 85, 43 L. J. Mag. Cas. N. S. 13. 2Q 

63. 23 Revised Rep. 757 ; Morrissey L. T. N. S. 544, 22 Week Rep. 190. 

V. Wiggins Ferry Co. 47 Mo. 521. 12 Cox, C. C. 527; Whitcher v. Mc- 

See Re Wintle, L. R. 9 Eq. 373. Langhlin, 115 Mass. 168. 

21 L. T. N. S. 781, 18 Week. Rep. '^Cot>c v. Cope. 1 Moody & R. 

394. 271, 5 Car. & P. 604; Blackburn v. 

^ Rex \'. North Pother ion, ^V,:irn. Crawford. 3 Wall. 175, 18 L. ed. 

& C. 508, 8 Dowl. & R. 325, 4 L. J. 186. 

K. B. 213, 29 Revised Rep. 305. ^ Whitcher v. McLaughlin. \\S 

See Rex v. Lubbenham. 5 Barn. Mass. 168. 



§ 533] DOCUMENTS. 1111 

then the registry is prima facie proof of the birth and its date.® 
The identity of the person referred to, however, must be 
proved aliunde^ The marriage registry proves not only the 
fact of marriage, but the time of celebration.^ The mode of 
proving marriage will be found more fully discussed in a 
prior chapter.' 

§ 533. Entries must be first-hand and prompt. — Entries 
in such a registry, however, must be made at first-hand in 
order to be admissible.^ Thus, a minister's entry of a bap- 
tism, administered by another person before his own official 
service began, the information of the baptism having been 
given him by the clerk, has been ruled inadmissible,^ though an 
entry by the proper officer may verify an act done by his 
official subaltern.^ Immediateness of entry, however, is not 
essential, if the entry be made by the officer himself, and there 
is no suspicious delay,* though the registry must come from 
the proper custody,^ and the proper officer.^ But in a criminal 
issue, where the fact of marriage must be proved beyond 
reasonable doubt,''^ the statute must be strictly complied with 
to make the registry by itself sufficient proof. Thus, in 
Michigan, in a prosecution for bigamy, the only evidence of 
a first marriage was that of a ceremony in Ohio before a 

6 Derby v. Salem, 30 Vt. 722 ; ^ Dq^, gx dem. Warren v. Bray, 

Stoever v. Whitman, 6 Binn. 416. S Barn. & C. 813, 3 Mann. & R. 428, 

See Carskadden v. Poorman, 10 7 L. J. K. E. 161; Walker v. Wing- 

Watts, 82. 36 Am. Dec. 145. field, 18 Ves. Jr. 443, 11 Revised 

'' Morrissey v. Wiggins Ferry Co. Rep. 232. 

47 Mo. 521. 3 Doe ex dem. WoUaston v. 

* Doc ex dem. WoUaston v Barnes, 1 Moody & R. 386 

Barnes, 1 Moody & R. 386 ; Reg. v. * Derby v. Salem, 30 Vt. 722. 

Halves, 1 Den. C. C. 270, 2 Co.x, C. 5 6 Wharton, Ev. §§ 194, et seq. 

C. 432. ^Doe ex dem. Arundel v. Fowl- 

9 Supra, §§ 170, 171. er, 19 L. J. Q. B. N. S. 151, 14 Q. B. 

iSee supra, § 251; Wharton, Ev. 700, 14 Jur. 179. 

§246. 'Supra, § 171. 



1112 EVIDENCE IN CRIMINAL CASES. [CHAP. XI. 

justice, under a license issued not by a judge of probate, as 
required by statute, but by one signing himself "deputy clerk," 
with a full knowledge on the part of the justice of his want 
of authority, the defendant being at the time under arrest, 
there being also proof of a refusal of the defendant to live 
with the woman as his wife at any time after such ceremony. 
Tin's was ruled insufficient to sustain the verdict.* 

§ 534. Certificate at common law inadmissible. — At 
common law, as we have already seen, a certificate from a 
party, even when acting officially, that he has done a particu- 
lar thing, is inadmissible to prove such thing. If living, he 
must be called to prove the fact; if dead, it may be proved by 
his official entries.^ This rule applies to certificates of mar- 
riage and of birth, in cases w^iere such certificates are not 
otherwise made evidence. Thus the certificate of a clergyman 
given sixteen years after a marriage, that he had married the 
husband to one claiming to be a prior wife, cannot, by itself, 
be received to establish such prior marriage, there being no 
record of such marriage in the registry of the church.^ Under 
the Connecticut statute, however, a certificate of baptism, by 
a duly authorized minister, is admissible ; ^ and such seems to 
be the rule under the Maine statute.* When made evidence 
by statute, such certificates become only prima facie proof of 
the facts they duly set forth.^ 

§ 535. Copies inadmissible. — Copies of administrative 
records, or of papers deposited in public archives, are at com- 

^Kophe V. People, 43 Mich. 41, 4 ^ Huiitly v. Compstock, 2 Root, 

N. W. 551; supra, §§ 169. 173a,ct 99. 

seq. 4 Doig V Allen, 4 Me. 527. 

See post, § 827; Stafe v. Bow-, ^ Derby v. Salem, 30 Vt. 722; 

61 Me. 171. Jones's Succession, 12 La. Ann. 

1 See supra, § 195. 397. 

^Gnhies v. Cheu, 2 How. 619, 11 See Beates v. Retallkk, 23 Pa. 

L. ed. 402. 288. 



§ 536] DOCUMENTS. 1113 

moil law inadmissible when the original can be had. Thus, 
a sworn copy of a marriage contract, executed in the presence 
of the lieutenant governor and Spanish commandant of Upper 
Louisiana, with a certificate of the commandant that the or- 
iginal was deposited in the archives of the territory, is not ad- 
missible to prove the marriage.^ Yet, when the original can- 
not be had, an exemplification is admissible, for the reason 
tliat it is the best evidence attainable.^ 

Where a statute, as is the case in several states, requires the 
return of a certificate of marriage to be made by the officiating 
minister to the county clerk for record, the proper mode of 
proving such fact is by an exemplification of the certificate.^ 
But an exemplification of a foreign certificate of marriage will 
not be received unless it be proved that the record was kept in 
conformity with law, and that the oerson officiating was au- 
thorized to officiate.* 

§ 536. Family records admissible to prove family 
events. — AA'e have already observed that for the purpose 
of proving pedigree, and other matters of family interest, fam- 
ily Bibles and other records may be received.^ For the same 
purpose a family chart regarded as authoritative by the family 
may be put in evidence.^ 

^Chouteau V. Chevalier, 1 Mo. Dall. 2, 1 L. ed. 11; American L. 

343. Ins. & T. Co. v. Rosenagle. 77 Pa. 

See State v. Dooris, 40 Conn. 14.'. 507. 

^Alivcn V. Furnival, 1 Cromp. M. ^ Miles v. Sprague, 13 Iowa, 198. 

& R. 277, 4 Tyrw. 751, 3 L. J. Exch. ^ State v. Dooris, 40 Conn. 145; 

N. S. 241; Boyle v. Wiseman, 10 Wharton, Ev. § 659. 

Exch. 647, 3 C. L. R. 482, 24 L. J. i Wharton, Ev. § 219. 

Exch. N. S. 160, 1 Jur. N. S. 115, As to evidence of entries in fam- 

3 Week. Rep. 206; Quilter v. Jorss, ily Bible or other religious book, 

14 C. B. N. S. 747, 11 Week. Rep. see also note in 41 L.R.A. 449. 

888; Cood v. Cood, 1 Curt. Eccl. ^ North Brookfietd v. Warren, 16 

Rep. 765; Hyam v. Edwards, 1 Gray, 171; Wharton, Ev. § 660. 



1114 EVIDENCE IN CRIMINAL CASES. [CHAP. XI. 

§ 536a. Weight of documents as testimony. — As a gen- 
eral rule documents are only prima facie evidence of the 
facts which they are offered to prove,^ except where the stat- 
ute itself may make a provision as to the weight and con- 
clusiveness of the evidence. It also follows that recitals in 
documents are merely prima facie evidence.^ 

Although a document may only be prima facie evidence of 
the fact, it is not overcome by the testimony of a single 
witness who may testify to it,^ but such oral testimony must 
be clear and satisfactory.* The introduction of a document by 
a party does not of itself preclude him from introducing other 
testimony relevant to the fact sought to be established, even 
where the oral testimony may discredit the document.^ 

V. Book? of History and Science; Maps. 

§ 537. Approved books of history and geography by 
deceased authors receivable. — Unless, as in prosecutions 
for libel, for the purpose of imputing certain facts to autlior 
or publisher, a history by a living author cannot be put in 
evidence. As a record of facts, it is, as to third parties, hear- 
say, and if the author's authority for these facts is sought, he 

^United States v. Hutclicson, 2 W. 587; Hoffman v. Hendricks, 21 

L.R.A. 805, 39 Fed. 540: People ex Okla. 479, 96 Pac. 589, 17 A. & E. 

rel. Martin v. Brozvn, 55 N. Y. 180 ; Ann. Cas. 379. 
Anderson v. State, 8 Heisk. 13. ^ Biince v. Gallagher, 5 B'.atchf. 

^ State V. Beard, 1 Ind. 460. 481, Fed. Cas. No. 2.133; IValdron 

^Lindsay v. Cusimano, 12 Fed. v. Evans, 1 Dak. 11, 46 N. W. 607: 

504; Glos v. Holmes, 228 111. 436, American T. & Sav. Bank v. Zeig- 

81 N. E. 1064. ler Coal Co. 91 C. C. A. 72. 165 

^Dickenson v. State, 20 Neb. 72. Fed. 34; Raymond v. Nye. 5 Met. 

29 N. W. 184; Bimce v. Gallagher, 151; Kingman v. Tirrclf, 11 Allen. 

5 Blatchf. 481, Fed. Cas. No. 2,133 : 97; Fogg v. Farr, 16 Gray. 396; 

Raymond v. Nye, 5 Met. 151 ; King- Conner v. New England Steam & 

man v. Tirrell, 11 Allen. 97; Fogg Gas Pipe Co. 40 N. H. 537; Henny 

V. Farr, 16 Gray, 396; Henny Bug- Buggy Co. v. Patt, 73 Iowa, 485, 35 

gy Co. V. Patt, 73 Iowa, 485, 35 N. N. W. 587. 



§ 537] DOCUMENTS. 1115 

must be called as a witness, whenever lie is within the process 
of the court. ^ Nor can such book be received when secondary, 
even though the author and all others who could speak to 
the facts are dead. Thus Dugdale's Monasticon Anglicanum 
has been rejected as evidence to show that the Abbey de 
Sentibus was an inferior abbey, because the original records 
were procurable.^ But where the author is out of the reach 
of such process, then a book of history, travels, or chronicles, 
when not a compilation from another book which is producible, 
is admissible for what it is worth, so far as concerns facts 
out of the memory of living men.^ And, as a rule, any such 
approved public and general history (and of the fact of ap- 
proval the court will take judicial notice),* when not second- 
ary, as a secondhand reduction of another producible work, is 
admissible to prove ancient facts of a public nature either at 
home or abroad. It is otherwise, however, as to matters of 
a private nature; such as the descent of families, or even 
the boundaries of counties.* College catalogues,^ and peerage 
lists, and army and navy lists,' are likewise inadmissible, if 
offered as to matters which could be proved by living wit- 
nesses. And the Gazetteer of the United States, without 
further authentication, cannot be received to prove the rela- 
tive distances of geographical points.^ 

But to illustrate the meaning of words and allusions, books 

^Houghton v. Gilbart, 7 Car. & 4 Wharton, Ev. § 282. 

P. 701; Fuller v. Princeton, 2 Dane, ^ Steyner v. Droitwich, Skinner, 

Abr. chaps. 48, 49 ; Morris v. Har- 623, 1 Salk. 281, 12 Mod. 85 ; Evans 

viers, 7 Pet. 554, 8 L. ed. 781 ; Unit- v. Getting, 6 Car. & P. 586; McKin- 

cd States v. Jackalow, 1 Black. 484. non v. Bliss, 21 N. Y. 206. 

17 L. ed. 225; Edwards v. Morris, ^ State v. Daniels, 44 N. H. 383. 

1 Ohio, 524. ' Marchmont Peer Min. Ev. 62. 

See Wharton, Ev. § 338. 77; IVetmore v. United States, 10 

2 Staincr v. Droitwich, 1 Salk. Pet. 647, 9 L. ed. 567. 

281. ^Spalding v. Hedges. 2 Pa. St. 

'See Wharton, Ev. § 537, for 240; Stephen's Digest of Ev. ar*;. 

cases. 37, 



1116 EVIDENCE IN CRIMINAL CASES. [CIIAP. XI. 

of general literary history may be referred to.^ Thus, in a 
case before the English court of exchequer/" it was ruled that 
works of standard authority in literature may, provided the 
privilege be not abused, be referred to by counsel or a party 
at a trial, in order to show the course of literary composition, 
and explain the sense in which words are used, and matters 
of a like nature; but that they cannot be resorted to for the 
purpose of proving facts relevant to the cause.^^ 

§ 537a. Plats, diagrams, etc., as illustrating testi- 
mony. — Courts would be deprived of a very great aid un- 
less they could avail themselves of plats, diagrams, and sketch- 
es, which, although not evidence themselves, serve to illustrate 
and explain testimony of witnesses. Such documents have 
generally been received to identify and explain localities, and 
to enable the jury the better to understand the oral testimony. 
There is no presumption as to correctness of such documents, 
but, in order that they may be used, the witness who prepared 
them must be called to prove their correctness from his own 
knowledge, and that they faithfully represent the thing to 
be illustrated. If the accuracy of the illustration is dis- 
puted, it is a question for the jury, turning upon the credi- 
bility of the witness.^ While such document must be proved, 
it is admissible for any other of the witnesses to refer to it 

9 Wharton, Ev. § 283. 48 S. \V. 508; Territory v. Emilio, 

^'^ Darby V. Ouscley, 1 Hurlst. & 14 N. M. 147, 89 Pac. 239; Com. v. 

N. 1, 25 L. J. Exch. N. S. 227, 2 Johnson, 213 Pa. 432, 62 Atl. 1064; 

Jur. N. S. 497. 4 Week. Rep. 463. People v. Johnson, 140 N. Y. 350, 

" See 2 Co. Litt. 264a ; Best, Ev. 35 N. E. 604, 9 Am. Crim. Rep. Z77 : 

802. Burton v. State, 107 Ala. 108. 18 So. 

^ State V. Harrison, — N. C. — , 284; People v. Smith, 121 N. Y. 578, 

58 S. E. 754; Hislcr v. State, 52 Fla. 582, 24 N. E. 852; M-'est v. State, 53 

30, 42 So. 692; Charter v. State, 39 Fla. 77, 43 So. 445. 
Tex. Crim. Rep. 345, 46 S. W. 236, 



§ 538] 



DOCUMENTS. 



1117 



■while testifying.^ Such documents are generally used to 
illustrate the locus in quo of a crime, and their admission, not 
as testimony, but as illustrating testimony, resting in the dis- 
cretion of the trial court, is not a ground for error.^ 

§ 538. Books of inductive science not usually admis- 
sible, — For reasons elsewhere discussed at large, ^ treatises 
on such of the inductive sciences as are based on data which 
each successive year corrects and expands must be refused 
admission when offered to prove the truth of facts contained 
in such treatises. Books of this class, therefore, though ad- 
missible, if properly authenticated, to prove the state of science 
at a particular epoch, when that is in issue, are inadmissible 
as independent substantive evidence to prove the facts they 
set forth.^ In an argument to a court, such works may, at 



^Burton v. State. 115 Ala. 1, 22 
So. 585, 107 Ala. 108, 18 So. 284. 

3 State V. Jerome, 33 Conn. 265 : 
Moon V. State, 68 Ga. 687; Com. v. 
Holliston, 107 Mass. 232; State v. 
Lazdor, 28 Minn. 216, 9 N. W. 698 ; 
People V. Johnson, 140 N. Y. 350, 
35 N. E. 604, 9 Am. Crim. Rep. 377 : 
Smith V. State, 21 Tex. App. 277. 17 
S. W. 471 ; Wilkinson v. State. lOG 
Ala. 23, 17 So. 458; Adams v. State. 
28 Fla. 511. 10 So. 106; Carter v. 
Te.vas, 177 U. S. 442. 44 L. ed. 839. 
20 Sup. Ct. Rep. 687; Mann v. 
State, 134 Ala. 1, 32 So. 704; Jar- 
vis V. State, 138 Ala. 17, 34 So. 
1025 ; Raaland v. State, 71 Ark. 65. 
70 S. W. 1039; Peofle v. Phelan. 
123 Cal. 551, 56 Pac. 424; Ratvllns 
V. State. 40 Fla. 155. 24 So. 65: 
State V. Cummings, 189 Mo. 626, 88 
S. W. 706; State v. Smith. 68 N. J. 
L. 609, 54 Atl. 411 ; State v. Wilcox, 
132 N. C. 1120, 44 S. E. 625; State 



V. Shaw. 73 Vt. 149. 50 Atl. 863, 1.;'. 
Am. Crim. Rep. 51 ; State v. Ilunf- 
er, 18 Wash. 670, 52 Pac. 247 ; Noel 
V. State, 161 Ala. 25, 49 So. 824; 
State V. Finch. 54 Or. 482, 103 Pac 
505. 

1 Wharton, Ev. § 665. 

^ Darby v. Ouselcy. 1 Hurlst. & 
N. 12. 25 L. J. Exch. N. S. 227. 2 
Jur. N. S. 497, 4 Week. Rep. 463; 
Collier v. Simpson, 5 Car. & P. 73 : 
Tarry v. Ashton. 34 L. T. N. S. 97; 
AsJiworth V. Kittridge, 12 Cusli. 
193, 59 Am. Dec 178; Whiton v. 
Albany City Ins. Co. 109 Mass. 24: 
Com. V. Sttirtivant. 117 Mass. 122. 
19 Am. Rep. 401; Com. v. Broun. 
121 Mass. 69; State v. O'Brien. 7 
R. I. 336; Yoe v. People. 49 111. 410: 
Carter v. State, 2 Ind. 617; Gclirkr 
V. State, 13 Tex. 568. 

See Ordway v. Hayncs, SO N. II. 
159; Bozvman v. IVoods. 1 G. 
Greene, 441 ; Bozvman v. Torr. 3 



1118 



EVIDENCE IX CRIMINAL CASES. [CHAP. XI. 



the discretion of the court, be read not as establishing facts 
(unless such books are regarded as matters of notoriety, as 
are ordinary dictionaries),' but as exhibiting distinct pro- 
cesses of reasoning which the court, from its own knowledge 
as thus refreshed, is able to pursue.* But if read to establish 
facts capable of proof by witnesses, such books cannot be 
received. Medical works, consequently, are inadmissible for 
the purpose of proving the facts they contain.^ So, in action 
for libel, charging the plaintiff with being a rebel and traitor 
"because he was a Roman Catholic," the defendant was not 
allowed to justify by citing books of authority among the 
Roman Catholics which seemed to show that their doctrines 
were inimical to loyalty.^ It is true that an expert, when 
called to state the sense of his profession on a particular topic^ 



Iowa, 571 ; Brodhead v. Wiltse, 35 
Iowa, 429 (by statute) ; Cory v. 
.Silcox, 6 Ind. 39; Liming v. State, 
1 Chand. (Wis.) 264; Ripon v. Bit- 
tel, 30 Wis. 614; Stoudenmeier v. 
Williamson, 29 Ala. 558; Merklc v. 
State, 37 Ala. 139. 

See article in 5 Cent. L. J. 439; 
note by Mr. Lawson, 22 Am Law- 
Reg. 105 et seq. ; and note in 40 
L.R.A. 561. 

3 See Alder v. State, 55 Ala. 16; 
Dempsey v. State, 3 Tex. App. 429, 
30 Am. Rep. 148; 1 Redf. Wills, p. 
145. Sec cases cited; Yoe v. Peo- 
ple, 49 111. 410; State v. Spencer, 21 
N. J. L. 196 ; Lecjg v. Drake, 1 Ohio 
St. 286; Kex v. IVaddington, 1 East, 
155, 166, 6 Revised Rep. 238 ; Mar- 
shall V. Brown, 50 Mich. 148, 15 N. 
W. 55; Pinney v. Cahill, 48 Mich. 
584, 12 N. W. 862. 

See 22 Am. Law Reg. 105, et seq. : 
State V. Hoyt. 46 Conn. 330; Still- 



ing V. Thorp, 54 Wis. 528, 41 Am. 
Rep. 60, 11 N. W. 906. 

See Ccm. v. Wilson, 1 Gray, ZZA; 
Com. V. Sturtivant, 117 Mass. 123, 
19 Am. Rep. 401 ; see discussions in 
24 Alb. L. J. 266, 284 ; Wharton, Ev. 
§§ 665, 666; 1 Greenl. Ev. § 44, and 
note. 

See People v. Draper, 1 N. Y. 
Crim. Rep. 139. 

* See fully Wharton, Ev. §§ 282. 
335; Harvey v. State, 40 Ind. 516. 

Contra, Reg. v. Taylor, 13 Cox, 
C. C. 77; Com. v. Wilson, 1 Gray. 
2,37. 

* Com. v. Wilson, 1 Gray, 337 ; 
Co;;;, v. Sturtivant, 117 Mass. 122, 
19 Am. Rep. 401 ; Com. v. Brown, 
121 Mass. 69. 

See Jones v. State, 65 Ga. 506: 
supra, § 407. 

^ Darby v. Ouseley, 1 Hurlst. & 
X. 1, 25 L. J. Exch. N. S. 227, 2 
Tur. N. S. 497, 4 Week. Rep. 463; 
Powell, Ev. 4th ed. lOS. 



§ 538] DOCUMENTS. 1119 

may cite authorities as agreeing with him, and may refresh 
his memory by referring to standard works in his specialty^ 
and may be cross-examined as to standard works so as to 
probe his capacity.' But such witnesses are not permitted, 
in their testimony, to read extracts from books on physical 
philosophy, as primary proof.' It is clear, however, that when 
an expert cites certain works as authority, they may be put 
in evidence to contradict him, ^° though unless he has been 
examined in reference to them, they cannot be used to im- 
peach him.^^ 

The reasons advanced for the nonadmissibility of books on 
the inexact sciences are that discovery and experiment are 
so constantly changing the theories in such sciences that a 
work upon such subjects which is of value to-day may be not 
only useless, but inaccurate and misleading, as compared witli 
the advances made to-morrow. 

Against these reasons, and in favor of a more liberal rule 
of admissibility for works upon scientific subjects, there exists 
the fact that such works are as trustworthy as human testi- 
mony can be; they are generally written as contributions to 
the science to which the author has devoted the best years of 
his life, generally without expectancy of financial reward, and 
with a complete absence of the personal factor. They are 

■'Supra, § 407; Cocks w. Purday, ^Com. v. Wilson, 1 Gray, 337; 

2 Car. & K. 270; Collier v. Simpson, Washburn v. Cuddihy, 8 Gray, 430; 

5 Car. & P. 73; M'Naghten's Case. Com. v. Stiirtivant, 117 Mass. 122, 

10 Clark & F. 200, 8 Scott, N. R. 19 Am. Rep. 401 ; Boyle v. State, 57 

595, 1 Car. & K. 130, note; Pierson Wis. 472, 46 Am. Rep. 41, 15 N. W. 

V. Hoag, A7 Barb. 243 ; Cory v. Sil- 827. 

cox, 6 Ind. 39; Harvey v. State, See fully supra, § 407; State v. 

40 Ind. 516; Bozvman v. Torr, 3 Gillick, 10 Iowa, 98. 

Iowa, 571; Ripon v. Bittel, 30 Wis. ^^ Ripoit v. Bittel, 30 Wis. 614. 

614; State v. Terrell, 12 Rich. L. ^^ Knoll v. State, 55 Wis. 249, 42 

321 ; Merkle v. State, 37 Ala. 139. Am. Rep. 704, 12 N. W. 369. 

See supra, § 407. 

8 Connecticut Mut. L. Ins. Co. v. 
Ellis, 89 111. 516. 



1 120 EVIDENCE IN CRIMINAL CASES. [CHAP. XI. 

also written, knowing that they will be subject to professional 
criticism, and will be discredited if not well founded, and that 
the author's reputation as a man of science depends upon the 
correctness of the facts and the accuracy of his inductions. 
These considerations are as certain to secure trustworthiness 
as an oath administered in open court. If the author of such 
a work was tendered as an expert to the court, and properly 
qualified as such, his evidence would be received and be given 
weight by the jury. Surely the final results of his work, writ- 
ten with the purpose of contributing to the particular science, 
for the information and betterment of humanity, should have 
equal weight when expressed on the printed page. This has 
been recognized by two states, ^^ and has been favorably re- 
garded in the Federal courts, ^^ but. as wall be seen, at this 
time the weight of authority is against the admission of any 
work or treatise pertaining to the inexact sciences, as evidence 
of the facts treated therein. 

Hence, with the exception of the jurisdictions noticed, works 
upon the medical sciences cannot be introduced as evidence. 
even though they are standard works upon the topic to which 
they they relate.^^ However, when such works are offered 

^^Bozvman v. Woods. 1 G. 121 Mass. 69; Com. v. Sturtcvanf. 

Greene, 445; Mcrklc v. State. 37 117 Mass. 122, 19 Am. Rep. 401: 

Ala. 139; Birmingham R. Light & Carter v. State. 2 Ind. 617; Plake v. 

P. Co. V. Moore, 148 Ala. 115. 42 State. 121 Ind. 433, 16 Am. St. Rep. 

So. 1024; People v. Goldensoii, 76 408. 23 N. E. 273; State v. Baldivin. 

Gal. 348, 19 Pac. 170. 36 Kan. 1, 12 Pac. 318, 7 Am. Grim. 

13 Western Assttr. Co. v. J. II. Rep. m ; People v. Hall, 48 Mich. 

Mohlman Co. 40 L.R.A. 561. 28 C. 482. 42 Am. Rep. 477, 12 N. W. 665. 

G. A. 157, 51 U. .S. App. 577, 83 Fed. 4 Am. Grim. Rep. 357; State v. 

811. Coleman. 20 S. G. 441; Marshall v. 

^^Epps V. State. 102 Ind. 541, 1 Brown. SO Mich. 148. 15 N. W. 55; 

N. E. 491, S Am. Grim. Rep. 517; Boyle v. State. 57 Wis. 472, 46 Am. 

State w. Peterson. \\Qlov:Si,(iA7,9>i Rep. 41. 15 N. W. 827; State v. 

N. W. 329; State v. Carpenter, \2\ Winter, 72 Iowa, 627, 34 N. W. 475 : 

Iowa. 5. 98 N. W. 775; Com. v. IF//- State v. O'Brien. 7 R. I. 336; Peo- 

son, 1 Gray. 337; Com. v. Broivi, pie v. Millard, 53 Mich. 63, 18 X. 



§ 539] DOCUMENTS. 1121 

in evidence, the objection must go to their incompetency as 
evidence, and, to insure a review of error alleged in the ad- 
mission of such works, the objection must be specifically 
pointed out. 

§ 539. Books of exact science. — Another state of facts 
arises when we approach books of exact science, in which con- 
clusions from certain and constant data are reached by pro- 
cesses too intricate to be elucidated by a witness when on 
examination on a stand. The books containing such processes, 
if duly sworn to by the persons by whom they are made, are 
the best evidence that can be produced in that particular line.^ 
When the authors of such books cannot be reached, the next 
best authentication of the books is to show that they have been 
accepted as authoritative by those dealing in business with the 
particular subject. Hence the Carlisle and Northampton tables 
have been admitted by the courts as showing what is the 
probable duration of life under particular conditions.^ In 
order to verify the book it is proper to prove, by a witness 

W. 562; Reg. v. Taylor, 13 Co^, C. 280, 87 Am. Dec. 391; David v. 
C. 77; Ware v. Ware, 8 Me. 42; Southivestern R. Co. 41 Ga. 223. 
Ripon V. Bittel, 30 Wis. 614; State Statutes often provide for the 
V. Sexton, 10 S. D. 127, 72 N. W. admission of life and mortuary 
84; Kreusiger v. Chicago & N. W. tables as evidence in cases to de- 
R. Co. 77, Wis. 158, 40 N. W. 657; termine the duration of life, and as 
People V. Draper, 1 N. Y. Crim. a basis for estimating damages de- 
Rep. 139. pending largely upon the question 

1 See supra, §§ 8, et seq., § 203. of whether or not the injuries al- 
For note on question of admis- leged are permanent or temporary 

sibility of books of exact science, in their character. Where the stat- 

see note in 40 L.R.A. 553. ute names a specific table or com- 

2 Mills V. Catlin, 22 Vt. 106 ; pilation, that, of course, is control- 
Schell V. Plumb, 55 N. Y. 598; Lan- ling, yet in (he absence of such stat- 
caster Bank v. Hogendobler, 3 ute the Carlisle and Northampton 
Clark (Pa.) 37; Baltimore & O. R. tables are standard on the subject 
Co. V. State, 33 Md. 542; Williams' of the duration of life. Donaldson 
Case, 3 Bland, Ch. 221; Donaldson v. Mississippi &■ M. R. Co. IS Iowa 
V. Mississippi & M. R. Co. miovjdi, 2S9, 87 Am. Dec. 380; Chase v. 

Crim. Ev. Vol. II.— 71. 



1122 



EVIDENCE IN CRIMINAL CASES. [CHAP. XI. 



qualified to speak to the point, that it is in use in the 
particular line of business to which the book relates.' It 
should, at the same time, be remembered that while the Car- 
lisle and other tables may be received to prove certain results 
of a large induction, they cannot be permitted to control a 
litigation as to the value of a life estate, so as to work sub- 
stantial injustice.'* An almanac, also, has been received in 
order to show the period of sunset and of moonlight.^ In 
the exact sciences are works of mathematics, containing stand- 
ard tables and calculations upon which men rely in the or- 
dinary business affairs of life, and in this are also included as- 
tronomical calculations, tables of logarithms, and almanacs, 
which are admissible as prima facie evidence.^ In the inexact 
sciences are included medical works and other inductive 
sciences. 



Burlington, C. R. & N. R. Co. 76 
Iowa, 675, 39 N. W. 196; Dcisen v. 
Chicago, Si. P. M. & O. R. Co. 43 
Minn. 454, 45 N. W. 864; McKeigue 
V. Janesville, 68 Wis. 50, 31 N. W. 
298; Mnlcairns v. Janesville, 67 
Wis. 24, 29 N. W. 565; Hunn v 
Michigan C. R. Co. 78 Mich. 513, 7 
L.R.A. 5C0, 44 N. W. 502 (state 
papers) ; San Antonio & A. P. R. 
Co. V. Bennett, 76 Tex. 151, 13 5. 
W. 319 (American Legion of 
Honor tables) ; Louisville, N. A. & 
C. R. Co. V. Miller, 141 Ind. 533, 37 
N. E. 343 ; Friend v. Ingersoll, 39 
Neb. 717, 58 N. W. 281 ; Richmond 
& D. R. Co. V. Hissong, 97 Ala. 187, 
13 So. 209; Kansas P. R. Co. v. 
I.undin, 3 Colo. 94; Campbell v. 
York, 172 Pa. 205, 33 Atl. 879; 
Steinbrunner v. Pittsburgh & IV. 
R. Co. 146 Pa. 504. 28 Am. St. Rep. 
805. 23 Atl. 239; Tozvusend v. 
Briggs, — Cal. — , 32 Pac. 307; 



Greer v. Louisville & N. R. Co. 94 
Ky. 169, 42 Am. St. Rep. 345. 21 S. 
W. 649; Arkansas Midland R. Co. 
V. Griffith, 63 Ark. 491, 39 S. W. 
550. 

3 Rowley v. London & N. W. R. 
Co. L. R. 8 Exch. 226, 42 L. J. 
Exch. N. S. 153, 29 L. T. N. S. 180, 
21 Week. Rep. 869. 

4 Wharton, Ev. § 667. 

^ State V. Morris, 47 Conn. 179; 
Munshower v. State, 55 Md. 11, 39 
Am. Rep. 414. 

See Tiitton v. Darke, 5 Hurlst. & 
N. 649, 29 L. J. Exch. N. S. 271, 6 
Jur. N. S. 983, 2 L. T. N. S. 361, 
15 Eng. Rnl. Cas. 315 ; Sprowl v. 
Lazvrence, 33 Ala. 674; People v. 
Chee Kee, 61 Cal. 404. 

See Wharton, Ev. § 282; Reed v. 
Wilson, 41 N. J. L. 29. 

^ Tucker v. Donald, 60 Miss. 460, 
45 Am. Rep. 416. 



§ 539a] DOCUMENTS. 1123 

§ 539a. Testimonial uses of scientific books. — While 
scientific and medical books are not admissible as evidence, 
nevertheless witnesses, testifying as experts on the topics to 
which such books relate, may give their opinion, together 
with the basis therefor, not only from their own observation 
and experience, but may give opinions based on information 
derived from such books. -^ So an attorney may use the state- 
ments in a medical work for the purpose of framing questions 
to be propounded to an expert witness as to his own opinions.^ 

An expert witness may refresh his recollection by reference 
to a standard authority,^ and may use an engraving in a scien- 
tific work to illustrate his testimony,* but care must be ob- 
served that the opinion which the witness gives must be his 
own, and not merely that of the author,^ and opinions founded 
merely upon medical, or scientific books of medical instruc- 
tion, are not admissible. ° 

Courts are in direct conflict as to how far, and for what 
purpose, medical works may be used to sustain an expert wit- 
ness.' While the rule as to the inadmissibility of such works 

1 State V. Terrell, 12 Rich. L. 6 State v. Baldwin, 31 Kan. 1, 12 

321; Marshall v. Brown, 50 Mich. Pac. 318, 7 Am. Crim. Rep. Z77 \ 

148, 15 N. W. 55 ; State v. Baldwin, Huffman 1. CHck, 77 N. C. 55. 

36 Kan. 1, 12 Pac. 318, 7 Am. Crim. ^ Soqnet v. State, 72 Wis. 659, 40 

Rep. 377. N. W. 391. 

^ State V. Coleman, 20 S. C. 441; 'The following authorities hold 

Connecticut Mitt. L. Ins. Co. v. that an expert cannot be sustained 

Ellis, 89 111. 516. nor contradicted by the facts and 

See Hess v. Lowrey, 122 Ind. 233, opinions found in medical works : 

7 L.R.A. 90, 17 Am. St. Rep. 355, 23 Gallagher v. Market Street R. Co. 

N. E. 156; Tompkins v. West, 56 67 Cal. 13, 56 Am. Rep. 713, 6 Pac. 

Conn. 478, 16 Atl. 237. 869 ; Fox v. Peninsular White Lead 

^ State V. Baldwin, 36 Kan. 1, 12 & Color Works, 84 Mich. 676, 48 

Pac. 318, 7 Am. Crim. Rep. Z77 ; N. W. 203; Davis v. State, 38 Md. 

Huffman v. Click, 77 N. C. 55. 15; State v. Winter, 72 Iowa, 627, 

4 Ordway v. Haynes, 50 N. H. 34 N. W. 475 ; People v. Sutton, 73 

159; People v. Cosset, 93 Cal. 641, Cal. 243, 15 Pac. 86; Knoll v. State, 

29 Pac. 246. 55 Wis. 249, 42 Am. Rep. 704, 12 N. 



1124 EVIDENCE IN CRIMINAL CASES. [CHAP. XI. 

in evidence cannot be evaded by using them upon cross-ex- 
amination, still they may be used to test the learning of the 
witness, by asking him whether or not he has read particular 
medical books, and whether or not his opinion is based upon 
statements in such books, and to inquire generally the extent 
of his knowledge and familiarity with the standard works 
of his profession.' 

And the rule against their admission also limits the ad- 
mission of such works, upon the argument of counsel. The 
line is distinct and clear that such works cannot be used as 
evidence, but may be used merely as a matter of illustration.' 

But it would be an abuse of the privilege to make the right 
to use them, as an illustration, the pretense of getting inad- 
missible evidence before the jury, and the court, in all such 
cases, should instruct the jury that such books are not evi- 
dence, and are not to be so regarded, but that they are used 
simply as a part of the argument.^" 

W. 369; Macfarland's Trial, 8 Abb. 17 Am. St. Rep. 355, 23 N. E. 156; 

Pr. N. S. 57. Fisher v. Southern P. R. Co. 89 Cal. 

See People v. Vanderhoof, 71 399, 26 Pac. 894. 

Mich. 158, 39 N. W. 28. » Reg. v. Crouch, 1 Cox, C. C. 99 ; 

The following authorities hold Burt v. State, 38 Tex. Crim. Rep 

that such works may be used to 397, 39 L.R.A. 305, 330, 40 S. W. 

sustain or to discredit a witness: 1000, 43 S. W. 344; Ashworth v. 

Union P. R. Co. v. Yates. 40 L.R.A. Kittridge, 12 Cush. 193, 59 Am. 

553, 25 C. C. A. 103, 49 U. S. App. Dec. 178; Com. v. Brozvn. 121 Mass. 

241, 79 Fed. 584; People v. Millard, 69; Baldwin v. Bricker, 86 Ind. 221 ; 

53 Mich. 63, 18 N. W. 562; Ripon v. Jones v. Doe, Smith (Ind.) 47. 

Bittel, 30 Wis. 614; Pinney v. Ca- ^° Legg v. Drake, 1 Ohio St. 287; 

hill, 48 Mich. 584, 12 N. W. 862: Melvin v. Easley,46 N. C. (1 Jones,, 

Egan v. Drydock, E. B. & B. R. Co. L.) 387, 62 Am. Dec. 171 ; Yoe v. 

12 App. Div. 556, 42 N. Y. Supp. People, 49 111. 410; Harvey v. 

188. State, 40 Ind. 516; Cavanah v. 

^Hall V. Murdock, 114 Mich. 233, State, 56 Miss. 300; Cross v. State, 

72 N. W. 150; State v. Wood, 53 N. 11 Tex. App. 84; Hudson v. State. 

H. 484; Hutchinson v. State. 19 6 Tex. App. 565, 32 Am. Rep. 593; 

Neb. 262, 27 N. W. 113; Hess v. Liming v. State, 1 Chand. (Wis.) 

Lozvrey, 122 Ind. 233, 7 L.R.A. 90, 178, 52 Am. Dec. 153. 



§ 540] 



DOCUMENTS. 



1125 



VI. Official Publications and Public Documents. 

§ 540. Distinction between official publications and 
those which concern private individuals. — The evidentiary 
character of official pubHcations is generally regulated by 
statute. At common law a distinction is taken between those 
announcements or proclamations which are issued by the gov- 
ernment and those which concern individuals in their private 
character only. Thus it has been held that a newspaper in 
which the official acts of the governor are required to be made 
public is admitted as evidence of the existence of such acts 
and the fact stated in it, until the contrary is shown.^ It has 
been held that the distinct authority for printing and publish- 
ing of laws need not be made to appear, where such laws 
purport to be published by official authority.^ In general, 
where there is an official printer, duly appointed, printed 
copies of official documents are admissible, and they are suf- 



These same observations apply to 
works upon law and evidence. It 
is the duty of the jury in criminal 
cases to receive and accept the law 
of the case as given them by the 
court, although extracts from law 
works may be entitled to considera- 
tion as a part of the argument. See 
Stciner v. Coxe, 4 Pa. 13; McMath 
V. State, 55 Ga. 303; Curtis v. State;. 
36 Ark. 284; People v. TreadweU, 
69 Cal. 226, 10 Pac. 502, 7 Am. 
Crim. Rep. 152; Baldwin's Appeal, 
44 Conn. 37. 

See State v. Hoyt, 46 Conn. 330; 
People V. Anderson, 44 Cal. 65. 

The almanac is regarded and 
held as part of the law of the land, 
and as such need not be specially 
pleaded nor proved, and is admit- 
ted in evidence to show the hours 
at which the sun rises and sets on 



certain designated days in the year, 
and other facts that rest upon ex- 
act calculations : Finney v. Callen- 
dar, 8 Minn. 41, Gil. 23; State v. 
Morris, 47 Conn. 179; Munshower 
V. State, 55 Md. 11, 39 Am. Rep. 
414; Wilson v. Van Leer, 127 Pa. 
372, 14 Am. St. Rep. 854, 17 Atl. 
1097; People v. Chee Kee, 61 Cal. 
404. 

See Case v. Pcrew, 46 Hun, 57 ; 
Collier V. Nokes, 2 Car. & K. 1012 ; 
Tutton V. Darke, 5 Hurlst. & N. 
647, 2 L. T. N. S. 361, 29 L. J, 
Exch. N. S. 271, 6 Jur. N. S. 983, 
IS Eng. Rul. Cas. 315. 

1 Liirton V. Gilliam, 2 111. 577, 33 
Am. Dec. 430. 

2 Wilt V. Cutler, 38 Mich. 196. 
But see Marks v. Orth, 121 Ind. 

10, 22 N. E. 668. 



1126 EVIDENCE IN CRIMINAL CASES. [CHAP. XI 

liciently authenticated if they appear to be printed by such 
authority. Under such ruhngs, American state papers, printed 
diplomatic correspondence, and officially printed editions of 
legislative journals, have been received in evidence.' Extracts 
from, and certified copies of, official papers preserved by the 
United States, are competent evidence of the facts or trans- 
actions to which they relate.* 

§ 541. Newspapers admissible to show certain facts. — 

When it is important to ascertain whether certain informa- 
tion was current in a community at a particular time, so as 
to impute knowledge to a particular person, then it may be 
admissible to put in evidence the newspapers circulating at 
the time in such community for the purpose of showing that 
the fact in question was one of common local notoriety.^ And 
the same course is taken when the object is to prove notice 
of dissolution of a partnership, or of market prices,^ when the 
newspaper containing the facts alleged is shown to have been 
likely to be read by, or its contents familiar to, the party 
charged.' 

^DutUlet V. Blanchard, 14 La. (N.S.) 758, 69 Atl. 702; Terry v. 

Ann. 97 ; Nixon v. Porter, 34 Miss. McNiel, 58 Barb. 241 ; Tri-Statc 

697, 69 Am. Dec. 408; Radcliff v. Mill. Co. v. Breisch, 145 Mich. 232, 

United Ins. Co. 7 Johns. 50; Root 108 N. W. 657; Henkle v. Smith. 

V. King, 7 Cow. 636; Watkins v. 21 111. 238; Aulls v. Young, 98 

Holman, 16 Pet. 55, 10 L. ed. 885; Mich. 231, 57 N. W. 119; Sisson v. 

Bryan v. Forsyth, 19 How. 334, 15 Cleveland & T. R. Co. 14 Mich. 

L. ed. 674; Post v. Kendall County, 489, 90 Am. Dec. 252. 

105 U. S. 667, 26 L. ed. 1204. Contra, Whelan v. Lynch, 60 N. 

'^Oakes V. United States, 174 U. Y. 469, 19 Am. Rep. 202; National 

S. 778, 43 L. ed. 1169, 19 Sup. Ct. Bank v. New Bedford, 175 Mass. 

Rep. 864. 257, 56 N. E. 288 ; Norfolk & W. R. 

1 Wharton, Ev. § 672. Co. v. Reeves, 97 Va. 284. 33 S. E. 

^Mt. Vernon Brezving Co. v. 606. 

Teschner, 108 Md. 158, 16 L.R.A. 3 Wiiarton, Ev. §§ 673, 674. 



§§542,543] DOCUMENTS. 1127 

§ 542. But not generally for other purposes. — Unless 
to charge a particular party with matter alleged to have been 
inserted by him in a newspaper; or to prove notoriety in the 
sense already stated; or to prove, by old newspapers, ancient 
facts not otherwise susceptible of proof, — newspapers can- 
not be received in evidence.^ And when the object is to charge 
a particular advertisement on a particular person as its author, 
it is necessary to produce the original manuscript. It is only 
when the latter is nonproducible that the printed copy can be 
received.^ So far as concerns ordinary events, a newspaper 
cannot be recognized as evidence.^ Thus the identity or 
history of a person cannot, as to matters of recent occurrence, 
which can be otherwise established, be proved by a newspaper 
notice.* 

§ 543. Knowledge of certain facts published in news- 
papers may be proved inferentially. — It has been held not 
enough, in order to bring home to a party knowledge of a 
newspaper notice, to show that the newspaper was circulated 
in the neighborhood of the party's residence.^ But it will be 
enough, to enable the newspaper to go to the jury, to prove 
that it was taken by the party on whom it is sought to prove 
notice, ^ or that he attended habitually a reading room where 
it was on file, or was shown in some way to have been familiar 
with the paper.^ 

1 See Wharton, Ev. § 674a. 2 Godfrey v. Macatilcy, Peake, N. 

^ Sweigart V. Lozvmartcr, 14 Serg. P. Cas. 155, note; Jenkins v. 5/i^- 

& R. 200. ard, 1 Starkie, 419, 18 Revised Rep. 

3 See Ring v. Huntington, 1 Mill, 792; Hart v. Alexander, 2 Mees. & 

Const. 162. W. 484, 6 L. J. Exch. N. S. 129; 

*Fosgate v. Herkimer Mfg. & Leeson v. Holt, 1 Starkie, 186, 18 

Hydraulic Co. 9 Barb. 287. Revised Rep. 758. 

1 Norwich & L. Navigation v. ^ Wharton, Ev. § 675. 
Theobald, Moody & M. 153; Kel- 
logg V. French, 15 Gray, 354. 



1128 EVIDENCE IN CRIMINAL CASES. [CHAP. XI. 

VII. Pictures and Photographs. 



§ 544. Photographs as primary evidence. — We have 

considered photographs from the view point of a picture or 
diagram to explain the locus in quo of a crime, or to aid or 
illustrate the oral testimony of a witness.^ 

But photographs are also admissible as primary evidence 
of the identity of persons alive or dead,^ and as evidence of 
the physical state or condition of a body or of an object.^ 
and to illustrate wounds or physical injuries.^'' 

They are also admissible in questions of pedigree, or to 
show racial characteristics. Thus, in a prosecution for breach 
of promise of marriage, there was evidence tending to show 
that the plaintiff had negro blood in her veins, and that in 



1 Supra, § 438b. 

For photographs as secondary 
evidence, see note in 35 L.R.A. 804. 

2 Wilson V. United States, 162 U. 
S. 613, 40 L. ed. 1090, 16 Sup. Ct. 
Rep. 895 ; Malachi v. State, 89 Ala. 
134, 8 So. 104; State v. Windahl, 
95 Iowa, 470, 64 N. W. 420; Com. 
V. Morgan, 159 Mass. 375, 34 N. E. 
458 ; State v. Holden, 42 Minn. 350, 
44 N. W. 123; Marion v. State, 20 
Neb. 233, 57 Am. Rep. 825, 29 N 
W. 911 ; Ruloff V. Pcol^le, 45 N. Y. 
213, 11 Abb. Pr. N. S. 245; Cozvle); 
V. People, 83 N. Y. 464, 38 Am. 
Rep. 464; Udderzook v. Com. 76 
Pa. 340, 1 Am. Crim. Rep. 311; 
Com. V. Connors, 156 Pa. 147, 
27 Atl. 366; Considine v. Unit- 
ed States, 50 C. C. A. 272, 112 
Fed. 342; People v. Durranf, 116 
Cal. 179, 48 Pac. 75, 10 Am. Crim. 
Rep. 499; Mow v. People, 31 Colo. 
351, 72 Pac. 1069; Shaffer v. United 
States, 24 App. D. C. 417; State v. 



Hasty, 121 Iowa, 507, 96 N. W. 
1115; State v. Fiilkerson, 97 Mo. 
App. 599, 71 S. W. 704; State v. 
McCoy, 15 Utah, 136, 49 Pac. 420. 

3 Cowley V. People, 8 Abb. N. C. 
1 ; People v. Webster, 139 N. Y. 7Z, 
34 N. E, 730; State v. Ellwood, 17 
R. I. 763, 24 Atl. 782; State v. Cook, 
75 Conn. 267, 53 Atl. 589; Com. v. 
Best, 180 Mass. 492, 62 N. E. 748; 
Com. V. Keller, 191 Pa. 122, 43 Atl. 
198; Monson v. State, — Tex. Crim. 
Rep. — , 63 S. W. 647; Young v. 
State, 49 Tex. Crim. Rep. 207, 92 
S. W. 841; Paulson v. State, 118 
Wis. 89, 94 N. W. 771, 15 Am. Crim. 
Rep. 497. 

3a. Franklin v. State, 69 Ga. 36, 47 
Am. Rep. 748; People v. Fish, 125 
N. Y. 136, 26 N. E. 319; State v. 
Powell, 5 Penn. (Del.) 24, 61 Atl. 
966 ; State v. Roberts, 28 Nev. 350. 
82 Pac. 100; Smith v. Territory, 11 
Okla. 669, 69 Pac. 805. 



§ 544] 



DOCUMENTS. 



1129 



making statements to the defendant as to her parentage she 
had suppressed the fact, and it was admissible for her to 
introduce photographs of her family, which she testified were 
correct likenesses, and which had been shown by her to the 
defendant.* 

Duly authenticated pictures, such as a portrait or a minia- 
ture painted from life, and proved to be an accurate likeness, 
are admissible upon questions of identity.* 

Radiographs, or photographs taken by some form of radi- 
ation other than light (generally by X — or Roentgen ray 
process), are also admissible as evidence of the facts shown 
thereby, and are admitted upon the same principles and under 
the same circumstances as ordinary photographs.^ These are 
also admissible to show the nature and extent of wounds upon 
a person.' 

In the introduction of radiographs, testimony of expert wit- 



* Van H out en v. Morse, 162 Mass. 
414, 26 L.R.A. 430, 44 Am. St. Rep. 
373, 38 N. E. 705. 

5 Udderzook v. Com. 76 Pa. 340, 1 
Am. Crim. Rep. 311. 

^Miller v. Mintun, 72, Ark. 183, 
83 S. \V. 918; Chicago & J. Elec- 
tric R. Co. V. Spence, 213 111. 220, 
104 Am. St. Rep. 213, 72 N. E. 
796; Jameson v. Weld, 93 Me. 345, 
354, 45 Atl. 299 ; Geneva v. Burnett, 
65 Neb. 464, 58 L.R.A. 287, 101 Am. 
St. Rep. 628, 91 N. W. 275 ; Mauch 
V. Hartford, 112 Wis. 40, 87 N. W. 
816; Miller v. Diimon, 24 Wash. 
648, 64 Pac. 804 ; State v. Matheson, 
130 Iowa, 440, 114 Am. St. Rep. 
427, 103 N. W. 137, 8 A. & E. Ann. 
Cas. 430; De Forge v. New York, 
N. H. & H. R. Co. 178 Mass. 59. 



86 Am. St. Rep. 464, 59 N. E. 669; 
Carlson v. Benton, 66 Neb. 486, 92 
N. W. 600, 1 A. & E. Ann. Cas. 
159; Bruce v. Beall, 99 Tenn. 303, 
41 S. W. 445. 

''State V. Pozvell, 5 Penn. (Del.) 
24. 61 Atl. 966; Franklin v. State, 
69 Ga. 36, 47 Am. Rep. 748; State 
V. Matheson, 130 Iowa, 440, 114 
Am. St. Rep. 427, 103 N. W. 137, 8 
A. & E. Ann. Cas. 430; State v. 
Roberts, 28 Nev. 350, 82 Pac. 100: 
People V. Fish. 125 N. Y. 136, 26 
N. E. 319; Smith v. Territory, 11 
Okla. 669, 69 Pac. 805; State v. 
Bailey, 79 Conn. 589, 65 Atl. 951; 
Young v. State, 49 Tex. Crim. Rep. 
207, 92 S. W. 841 ; Com. v. Tucker, 
189 Mass. 457, 7 L.R.A. (N.S.) 
1056, 76 N. E. 127. 



1130 EVIDENCE IN CRIMINAL CASES. [CHAP. XI. 

nesses, explanatory of the process, and showing the difference 
between them and ordinary photographs, is admissible.* 

In all cases the genuineness and fairness of the photograph 
should be proved by testimony, as a prerequisite to admis- 
sion,^ and the negative from which photograph is printed, 
where possible, should always be produced." Photographs 
may also be received of records which cannot be brought into 
court.^^ 

But as to all forms of pictorial or photographic representa- 
tion, whether the representation is genuine and reasonably 
correct must be determined by the trial court, before the same 
can be received in evidence, and the action of the court is 
not open to review, except in case of abuse of its discretion.^^ 

§ 544a. Photographs as illustrating testimony. — Photo- 
graphs are admitted in evidence so generally, and their use 
has been sanctioned for so long a time by the courts, that, 
relying upon the accuracy of the representation, the courts 

* De Forge v. New York, N. H. Wrecking & Transp. Co. 2 Woods, 

& H. R. Co. 178 Mass. 59, 86 Am. 682, Fed. Cas. No. 8,164; supra, 

St. Rep. 464, 59 N. E. 669. § 175 ; Luco v. United States, 23 

^ Marcy v. Barnes, 16 Gray, 161, How. 515, 16 L. ed. 545; Reddin v, 

77 Am. Dec. 405 ; Hollenheck v. Gates, 52 Iowa, 210. 2 N. W. 1079. 
Rowley, 8 Allen, 473 ; Com. v. Coe, ^ Marcy v. Barnes, 16 Gray, 161 

115 Mass. 481; Walker v. Curtis, 77 Am. bee. 405; Hollenheck v 

116 Mass. 98; Blair v. Pclliam, 118 Rowley, 8 Allen, 473; Co3::ens v. 
Mass. 420; Ruloff v. People, 45 N. Higgins, 1 Abb. App. Dec. 451; 
Y. 215 ; 3 Wharton & S. Med Jur. Ruloff v. People, 45 N. Y. 213 ; Ud- 
4th ed. § 835 ; Cowley v. People, 83 dersook v. Com. 76 Pa. 340, 1 Am. 
N. Y. 464, 38 Am. Rep. 464, s. c. Crim. Rep. 311 ; Ch^irch v. Milwau- 
21 Hun, 415; 3 Wharton & S. Med. kee, 31 Wis. 512; Com. v. Coe, 115 
Jur. 4th ed. §§ 670, et seq. Mass. 481, 505 ; Walker v. Curtis, 

10 Tidy, Med. Jur. 1883, pt. 1, 143; 116 Mass. 98; Rumford Chemical 
3 Wharton & S. Med. Jur. 4th ed. Works v. Hecker, 11 Blatchf. 552, 
§ 943. I'ed. Cas. No. 12,132; Oriis v. State. 

11 See Re Stephens. L. R. 9 C. P 30 Fla. 256, 11 So. 611; Com. v. 
187, 22 Week. Rep. 615; Daly v. Morgan, 159 Mass. 375, 34 N. E. 
Maguire, 6 Blatchf. 137, Fed. Cas. 458; Chicago v. Vesey, 105 111. Appi 
No. 3,551 ; Leathers v. Salvor 191. 



§ 545] DOCUMENTS. 1131 

not infrequently overlook the fact that a photograph is not 
evidence of itself, but is used to illustrate evidence.^ If the 
fact to be shown by the photograph is not admissible, obviously 
the photographic representation is not admissible. In this 
view^ we are only concerned with the use of photographs as 
an aid to testimony. As preliminary to the use of such pho- 
tograph, it must be properly authenticated and verified by a 
witness having personal knowledge of the facts. 

Photographic reproductions of a scene, taken from such 
reproduction, and not from the original scene, are not ad- 
missible.^* 

But, where properly authenticated, and where it appears 
that the conditions have not changed in the meantime, pho- 
tographs are received for the purpose of identifying the locus 
ill quo and illustrating the oral testimony.^ 

§ 545. Relevancy of documents and photographs. — 

While all such records and representations that fall within 
the meaning of the word "document," as shown in the text, 
are admissible, in evidence, under the conditions and limita- 
tions set forth in the preceding sections, it is essential to their 
admission that they should be shown, first, to be correct, and 

1 For a note on the subject of pie v. Buddensieck, 4 N. Y. Crim. 
photographs as evidence, see 35 Rep. 230; State v. Hersom, 90 Me. 
L.R.A. 802. 273, 38 Atl. 160; Com. v. Chance. 

la Fore V. State, 75 Miss. 727, 23 174 Mass. 245, 75 Am. St. Rep. 306. 

So. 710; People v. Matighs, 149 Cal. 54 N. E. 551. The fact that a pho- 

253, 86 Pac. 187; post, § 544. tograph was not taken by a profes- 

See People v Jackson, 111 N. Y. sional photographer does not ren- 

362, 19 N. E. 54 ; Shaiv v. State, S3 der it inadmissible. Mow v. People. 

Ga. 92. 9 S. E. 768, 8 Am. Crim. 31 Colo. 351, 72 Pac. 1069; Diiffin 

Rep. 426; State v. O'Reilly, 126 Mo. v. People. 107 111. 113, 47 Am. Rep. 

597, 29 S. W. 577. 431 ; Russell v. State, — Ala. — , 38 

2 Gibson v. State, 53 Tex Crim. So. 291. 
Rep. 349, 110 S. W. 41; Ortiz v. 

State. 30 Fla. 256, 11 So. 611; Peo- 



1132 EVIDENCE IN CRIMINAL CASES. [CHAP. XI. 

to faithfully represent the object portrayed;^ second, that 
they should be relevant to establish or disprove the fact con- 
cerning which they are offered;^ third, it should affirmatively 
appear that no material change has taken place in the condi- 
tions sought to be represented.^ 

VIII. Proof of the Execution of Documents. 

§ 546. Character of proof necessary to show execution 

of document. — It is sometimes said that certain documents 
prove themselves, but this is an inaccurate statement, and apt 
to be misleading. It is equally as necessary to prove the due 
execution of a document as it is to qualify a witness to give 
oral testimony. The proof necessary to show the execution 
of a document obviously varies with the nature and kind of 
document. 

A proper classification leads us, first, to speak of govern- 
ment and judicial documents. The Constitution provides : 
"Full faith and credit shall be given in each state to the pub- 
lic acts, records, and judicial proceedings of every other state; 
and Congress may, by general laws, prescribe the manner in 
which such acts, records, and proceedings shall be proved, and 
the effect thereof;" ^ and Congress had effectuated this provi- 
sion by enacting "that the records and judicial proceedings 
of the courts of any state shall be proved and admitted in any 
other court within the United States by the attestation of the 
clerk and the seal of the court affixed, if there be a seal, to- 

Ufow V. People, 31 Colo. 351, 72 77\, 24 Atl. 782; Com. v. Morgan, 

Pac. 1069; People v. Durrant, 116 159 Mass. 375, 34 N. E. 458; Com. 

Cal. 179, 48 Pac. 75, 10 Am. Crim. v. Campbell, 155 Mass. 537, 30 N. 

Rep. 499 ; Com. v. Switser, 134 Pa. E. 72. 

383, 19 Atl. 681 ; Ming v. Foote, 9 3 Cleveland, C. C. & St. L. R. Co. 

Mont. 201, 23 Pac. 515; Stuart v. v. Monaghan, 140 111. 474, 483, 30 

Binsse. 10 Bosw. 436. N. E. 869. 

^ State V. Ellwood, 17 R. I. 762, lU. S. Const, art. 4, § 1. 



§ 546] DOCUMENTS. 1133 

gether with the certificate of the judge, chief justice, or presid- 
ing magistrate, as the case may be, that the said attestation 
is in due form. And the said records and judicial proceed- 
ings, authenticated as aforesaid, shall have such faith and 
credit given to them in every court within the United States 
as they have by law or usage in the courts of the state from 
whence such records are, or shall be, taken."^ 

It has been held that such attestation must be in the form 
usually employed by the state attesting the document. Thus, 
if the court has a seal it must be affixed to the certificate of 
the clerk; if it has none, such fact must appear on the certifi- 
cate.^ Such certificate must also show that the clerk who at- 
tested is the clerk, and that his attestation is in due form.* 
However, it has been held that, as the statute refers to the 
clerk, the seal, the judge, chief justice, or presiding magistrate, 
courts not of record are not included, and the records of such 
courts must be attested according to the law of the state in 
the courts of which such records are to be used.** 

2 Act of May 26, 1790, 1 Stat, at Miss. 59; State v. Hunter, 94 N. C. 
L. 122, chap. 11, U. S. Comp. Stat. 829; Turnbull v. Payson, 95 U. S. 
1901, p. 677. 418, 24 L. ed. 437. 

3 Hall V. Mackay, 78 Tex. 248, 14 « Settle v. Alison, 8 Ga. 201, 52 
S. W. 615; Rand v. Hanson, 154 Am. Dec. 393; Stephenson v. Ban- 
Mass. 87, 12 L.R.A. 574, 26 Am. nister, 3 Bibb, 369 ; Pratt v. King, 1 
St. Rep. 210, 28 N. E. 6; Suesen- Or. 49; Central Bank v. Veasey, 14 
bach V. Wagner, 41 Minn. 108. 42 Ark. 671. 

N. W. 925; Rea v. Scully, 76 Iowa. 4^ See People v. Smith, 121 N. Y. 

343, 41 N. W. 36; Mehlin v. Ice, 578, 24 N. E. 852; also as to au- 

5 C. C. A. 403, 12 U. S. App. 305, thentication of documents from 

56 Fed. 12; Van Storch v. Griffin, sister states the following cases: 

71 Pa. 240; Craig v. Brown, Pet. C. Bright v. Smitten, 10 Pa. Co. Ct. 

C. 352, Fed. Cas. No. 3,328 ; Drum- 647 ; Carpenter v. Strange, 141 U. 

mond V. Magruder, 9 Cranch, 122, S. 87, 35 L. ed. 640, 11 Sup. Ct. 

3 L. ed. 677; Shozvn v. Barr, 33 N. Rep. 960; First Nat. Bank v. Cun- 

C. (11 Ired. L.) 296; Ferguson v. ningham. 48 Fed. 515; Huntington 

Harwood, 7 Cranch, 408, 3 L. ed. v. Atirill, 146 U. S. 657. 35 L. ed. 

386; Bean v. Loryea, 81 Cal. 151. 1123, 13 Sup. Ct. Rep. 224; Hovey 

22 Pac. 513; Melius v. Houston, 41 v. Elliott, 21 N. Y. Supp. 108; 



1134 EVIDENCE IN CRIMINAL CASES. [CHAP. XI. 

It is further provided that "copies of any books, records, 
papers, or documents, in any of the executive departments, 
authenticated under the seals of such departments respectively, 
shall be admitted in evidence equally with the originals there- 
of."' 

The statutes of the various states, under the head of Evi- 
dence, prescribe what is necessary to prove documents to be 
used in the courts of such states. Hence, where proof of 
the execution of all documents of a permanent character, or 
those common to the ordinary business transactions of life, 
is statutory controlled, in all such cases the statutory provi- 
sion must be "substantially complied with.' 

There is, in addition to such documents, a large number of 
documents that cannot be classified under any general head, 
such as private memoranda, private writings, marks, brands, 
labels, abbreviations, symbols, and other indicia that frequent- 
ly have an important bearing upon matters in litigation; and 
these must depend, for proof of their execution, upon testi- 
mony from some person qualified to testify to their execution 
and use for designated purposes. 

As to this class of documents, the measure of proof must 
obviously be proof to the satisfaction of the trial judge. No 
valid objection can be urged against this measure of proof, 
because it is a degree of proof so satisfactory to the judge 

Trehilcox v. McAlpine, 62 Hun, 317, Murphy v. Cady, 145 Mich. ZZ, 108 

17 N. Y. Supp. 221. N. W. 493; Lamar v. State, 49 Tex. 

But see contra, Ambler v. Whip- Crim. Rep. 563, 95 S. W. 509. 
pie, 139 111. 311, 32 Am. St. Rep. See Bell v. Kendrick, 25 Fla. 778, 

202, 28 N. E. 841; Chapman v. 6 So. 868; Co/^;«aw v. Com. 25 Gratt. 

Chapman, 48 Kan. 636, 29 Pac. ^5, 1% Am. Rt^.7\\; United States. 

1071; Fitzsimmons v. Johnson, 90 v. Amedy, 11 Wheat. 392, 6 L. ed. 

Tenn. 416, 17 S. W. ICO. 502. 

5 United States Rev. Stat. § 882, ^Settle v. Alison, 8 Ga. 205, 52 

U. S. Comp. Stat. 1901, p. 669 ; Bal- Am. Dec. 393 ; Stephenson v. Ban- 

leiv V. United States, 160 U. S. 187, nister, 3 Bibb, 369; Wharton, Ev. § 

40 L. ed. 388, 16 Sup. Ct. Rep. 263 ; 740, and cases cited. 



546] 



DOCUMENTS. 



1135 



that he himself, under the circumstances, would be pursuaded 
to act upon it, and, under the rightful presumptions of ju- 
dicial learning, fairness, and impartiality, when the judge had 
decided the measure or degree of proof to be satisfactory, the 
admission of such documents would not be error unless it is 
affirmatively shown that the trial court abused its discretion. 
This rule is sustained by the decisions where these matters 
have been presented to courts of final resort. The following 
decisions illustrate the apparently varying degree of proof 
required for the admission of the documents indicated, and 
there was doubtless a relevancy of circumstance, and condi- 
tions of coincidence and corroboration, that satisfied the trial 
judge of the execution of the document so admitted^ 



"f Smith V. State, 77 Ga. 705 (letter 
identified by a blot observed by 
party who delivered it to accused) ; 
State V. Oeder, 80 Iowa, 72, 45 N. W. 
543 (in an action to recover from a 
druggist the statutory penalty for 
selling liquors to an habitual drunk- 
ard, written applications by such 
person to purchase liquors, taken 
from the files of the county aud- 
itor, shown to be in the hand- 
writing of such person, sufficiently 
identified to be admissible in evi- 
dence) ; State v. Batson, 108 La. 
479, 32 So. 478 (a writing signed 
by deceased, found in the vest 
pocket of accuseed, held proper- 
ly admitted as circumstantial evi- 
dence, without proof of the hand- 
writing) ; Com. V. Burton, 183 Mass. 
461 (pay roll admitted, although 
witness producing same did not see 
accused sign it) ; State v. Mahoney, 
24 Mont. 281, 61 Pac. 647 (unsigned 
note admitted, believed to be, by 
the witness, in the handwriting of 
accused) ; and State v. Harvard, 30 



Mont. 518, 77 Pac. 50; State v. 
Capps, 71 N. C. 93 (written orders, 
used as corroborating evidence by 
a witness for whose benefit they 
were drawn, admitted, without fur- 
ther proof) ; State v. Dixon, 131 N. 

C. 808, 42 S. E. 944; State v. JVal- 
drop, 73 S. C. 60, 52 S. E. 793 
(writing oflFered to prove collat- 
eral evidence need not be formally 
proved) ; State v. Coleman, 17 S. 

D. 594, 98 N. W. 175 (letter writ- 
ten by accused admitted on testi- 
mony of his sister that it was in 
accused's handwriting) ; Powell v. 
State, — Tex. Crim. Rep. — , 44 S. 
W. 504 (letter alleged to have been 
written by accused held properly 
proved by testimony of an accom- 
plice that it was in accused's hand- 
writing) ; State v. Freshzvater, 30 
Utah, 442, 116 Am. St. Rep. 853, 
85 Pac. 447 (a series of unsigned 
typewritten letters admitted on tes- 
timony that one letter which was 
signed was in the handwritng of 
accused) ; State v. Matthews, 9 



1136 



EVIDENCE IN CRIMINAL CASES. [CHAP. XT. 



The degree of proof is not lessened because the document 
is informal or not within a recognized statutory class, but 
proof of the execution of such document must be duly made. 
Thus, a document purporting to be written by defendant is 
not admissible until it is shown to be in his handwriting;' 
an entry on a judge's docket, not shown to be in his own hand- 
writing, is not admissible ; ^ copy of a marriage register is not 
admissible where it does not appear that the person certify- 



Port. (Ala.) 370 (on change of 
venue the identity of a record may- 
be established by parol evidence) ; 
Beggs v. State, 55 Ala. 108 (with- 
in the state, certified copy of a 
marriage license admissible, al- 
though not under seal of the 
court) ; Colbert v. State, 125 Wis. 
423, 104 N. W. 61 (in prosecution 
for arson, evidence proving the 
identity of anonymous letter con- 
cerning the fire, held sufficient to 
admit the letter in evidence) ; 
Whaley v. State, 11 Ga. 123 (pencil 
memorandum found in a book tak- 
en from accused upon his arrest, 
admitted, without other proof of 
its execution) ; Barnes v. Alexan- 
der City, 89 Ala. 602, 7 So. 437 
(a book shown to be a record of 
the ordinances of a town, admis- 
sible to prove the existence of an 
ordinance, without further authenti- 
cation). See Com. v. Chase, 6 
Cush. 248; Com. v. Dozvning, 4 
Gray, 29 (justice's record need not 
bear a seal) ; Com. v. Hayden, 163 
Mass. 453, 28 L.R.A. 318, 47 Am. 
St. Rep. 468, 40 N. E. 846, 9 Am. 
Grim. Rep. 408 (record of marriage 
certified by assistant registrar, ad- 
missible) ; State v. Lally, 2 Marv. 
(Del.) 424, 43 Atl. 258 (bail bond 



may be proven by deputy clerk, in 
whose presence it was signed) ; 
See also State v. Matlack, 5 Penn. 
(Del.) 401, 64 Atl. 259; Hilburn 
V. State, 121 Ga. 344, 49 S. E. 318 
(criminal warrant admissible, even 
if not accompanied by the affida- 
vit on which it was issued). 

See Meador v. State, 44 Tex. 
Grim. Rep. 468, 72 S. W. 186; 
Morrison v. People, 196 111. 454, 
63 N. E. 989 (a certificate not 
issued on a competitive examin- 
ation, sufficiently proved to sustain 
the prosecution, where the names 
signed to such certificate were 
shown to be those of the examin- 
ing board, attested to a stamp simi- 
lar to the one used in the office of 
such board) ; Mosher v. State, 14 
Ind. 261 (papers taken from ac- 
cused may be proved by the officers 
who took them from him) ; Com. 
V. Mollis, 170 Mass. 433, 49 N. E. 
632 (age of prosecutrix sufficiently 
proven where her oral testimony 
corresponded with certificate of 
birth). 

^ State V. Grant, 74 Mo. ZZ; 
Langford v. State, 9 Tex. App. 
283. 

9 Smith V. State, 62 Ala. 29. 



§ 547] DOCUMENTS. 1137 

ing to it was the custodian, and that his signature is genu- 
ine ; ^^ a paper purporting to be a marriage certificate from an- 
other state, but not authenticated in any manner, is not ad- 
missible, though such paper comes from the possession of the 
wife of the accused." Thus, documents which are not evi- 
dential in their nature and quality cannot be made evidence 
simply by being authenticated.^^ It is error to admit testi- 
mony as to the contents of a letter seen by the witness, when 
the only evidence connecting it with defendant was that de- 
fendant's name was subscribed thereto, or unless such letters 
are shown to have been authorized by accused.^' Where a 
sheriff testifies to his belief that the signature to a letter pur- 
porting to be that of defendant was the same writing as that 
signed to a bail bond, it was error to admit the same without 
further proof.''* A conductor's ticket report, showing use of 
defendant's pass on a certain date, is not admissible without 
oral testimony as to the matters contained therein, where the 
conductor who made it was within the jurisdiction of the 
court.^^ 

§ 547. Proof of ancient documents. — It is also said of 
ancient documents that they prove themselves,^ but this is 

^^ State V. Dooris, 40 Conn. 145. '^^ People v. Lanterman, 9 Cal. 

^^Com. V. Morris, 1 Cush. 391; App. 674, 100 Pac. 720. 
State V. Horn, 43 Vt. 20. See ^ Beall v. Dearing 7 Ala. 124 

People V. Etter, 81 Mich. 570, 45 King v. Watkins, 98 Fed. 913 

N. W. 1109. Green v. Chelsea, 24 Pick. 71 

^^Sncll V. United States, 16 App. Henthorn v. Doe, 1 Blackf. 157 

D. C. 501. Hamilton v. Smith, 74 Conn. 374, 

^^State w. McGinn, 109 lo-w2i,6A\, SO Atl. 884; Phillips v. Watuppa 

80 N. W. 1068. See State v. Blake, Reservoir Co. 184 Mass. 404, 68 

36 Utah, 60S, 105 Pac. 910; Duek- N. E. 848; McCreary v. Coggeshall, 

worth V. State, 42 Tex. Crim. Rep. 74 S. C. 42, 7 L.R.A.(N.S.) 433, 

74, 57 S. W. 665. 53 S. E. 978, 7 A. & E. Ann. Cas. 

See Lane v. Corn. 134 Ky. 519, 693; Sims v. Sealy, S3 Tex. Civ. 

121 S. W. 486. App. 518, 116 S. W. 630. 

^^Jordt V. State. 50 Tex. Crim. 
Rep. 2, 99 S. W. 514. 

Crim. Ev. Vol. II.-72. 



1138 



EVIDENCE IN CRIMINAL CASES. [CHAP. XI. 



not the rule ; they must be shown to be genuine.^ The period 
of thirty years is sufficient to constitute an "ancient docu- 
ment," ^ unless some statutory regulation prescribes a differ- 
ent period.* This period is to be reckoned backwards from 
the time that the ancient document is offered in evidence,^ 
and forward from the date of execution. An important fact- 
or in an ancient document is the custody from which it comes. ^ 
This custody must be a natural custody. Thus, a letter found 
among papers written to the party to whom it is addressed,' 
documents found on file as exhibits in other actions,' and 
other places of deposit, where, in the ordinary course of 
things, such a document, if genuine, might reasonably be ex- 



^Willson V. Belts, 4 Denio, 201; 
Smith V. Rankin, 20 111. 14; Webb 
V. Ritter, 60 W. Va. 193, 220, 54 S. 
E. 484. 

8 Ely V. Stewart, 2 Atk. 44, Barn- 
ard Ch. 170; Rex v. Farringdon, 2 
T. R. 466; Rex v. Ryton, 5 T. R. 
259; Waldron v. Tuttle, 4 N. H. 
371. See Boykin v. Wright, 11 La. 
Ann. 531 ; McGennis v. Allison, 10 
Serg. & R. 197. 

* Minnesota Statutes 1901, chap- 
ter 116 (copy of deed recorded for 
twenty years is evidence of original 
deed) ; New Jersey General Stat- 
utes 1896, § 102 (deed recorded for 
twenty years elsewhere in the 
United States, certified copy may be 
used as original). 

See also Statutes 1898, chapter 
232, §§ 57, 58; Tenn. Code, 1896, 
§ 3761 ; Grat" v. Land & River 
Improv. Co. 40 L.R.A. 393, 27 C 
C. A. 305, 53 U. S. App. 499, 82 
Fed. 381; Florida Statutes 1903. 
See Cavipbell v. Skinner Mfg. Co. 
S3 Fla. 632, 43 So. 875. 



^ Man V. Ricketts, 7 Beav. 93; 
Gardner v. Granniss, 57 Ga. 539; 
Renter v. Stuckart, 181 111. 529, 
54 N. E. 1014. 

^ Chamberlain v. Shozvalter, 5 
Tex. Civ. App. 226, 23 S. W. 1017 ; 
West V. Houston Oil Co. — Tex. 
Civ. App. — , 120 S. W. 228. 

''Bell V. Brezvster, 44 Ohio St. 
690, 10 N. E. 679 ; McCrcary v. Cog- 
geshall, 74 S. C. 42, 61, 7 L.R.A. 
(N.S.) 433, 53 S. E. 978, 9 A. & 
E. Ann. Cas. 693. 

8 Applegate v. Lexington & C. C. 
Alining Co. 117 U. S. 255, 29 L. ed. 
892, 6 Sup. Ct. Rep. 742; Wood- 
ward V. Keck, — Tex. Civ. App. — , 
97 S. W. 852; Rees v. Walters, 
3 Mees. & W. 527, 7 L. J. Exch. 
N. S. 138, 2 Jur. 378 (lease at 
lessee's disposal is proper custody) ; 
Williams v. Conger, 49 Tex. 582 
(papers found with land commis- 
sioner) ; Lewis v. Lewis, 4 Watts 
& S. 378 (a receipt found in a 
desk issued by a person thirty 
years before). 



§ 547] DOCUMENTS. 1139 

pected to be found.^ A further requirement is that its ap- 
pearance must be genuine.^" These preliminary matters are 
to be determined by the trial judge acting on the circumstances 
of each particular case." It is true that the handwriting need 
not be proved/^ even though the party writing the document 
is within the jurisdiction of the court." Thus it will be seen 
that ancient documents, like all other testimony, are subject 
to reasonable testimonial requirements as a basis for their 
admission as evidence. The burden of establishing the ancient 
character and the genuineness of an ancient document is up- 
on the party offering the document, ^^ but the court, in its 
discretion, may admit it on less proof than would be required 
of other documents. ^^ Where nothing appears to contradict 
the preliminary showing, it seems that the court may instruct 
the jury that the document is genuine," but where there is any 
question, the genuineness of the document is for the jury, 
under proper instructions of the court, and, as in all other 

^ Doe ex dent. Wildgoose v. Christman, 4 Wend. 277; Ltmn v. 

Pearce, 2 Moody & R. 240; Scarborough, 6 Tex. Civ. App. 15, 

Croughton v. Blake, 12 Mees. & 24 S. W. 846; White v. Farris, 124 

W. 205, 13 L. J. Exch. N. S. Ala. 461, 27 So. 259; Cunningham 

78, 8 Jur. 275 ; Doe ex dem. Farmer v. Davis, 175 Mass. 213, 56 N. E. 

V. Eslava, 11 Ala. 1028; Gibson v. 2; McConnell Bros. v. Slappey, 134 

Poor, 21 N. H. 440, 53 Am. Dec. Ga. 87, 67 S. E. 440. 

216; McGuire v. Blount, 199 U. S. See Murphy v. Cady, 145 Mich. 

142, 50 L. ed. 125, 26 Sup. Ct. Rep. 33, 108 N. W. 493. 

1. "^^ Beaumont Pasture Co. v. Pres- 

^OHill V. Nisbit, 58 Ga. 586. ton, 65 Tex. 448; Stooksberry v. 

See Beverley v. Craven, 2 Moody Swan, — Tex. Civ. App. — , 21 

& R. 140; Harlan v. Howard, 79 S. W. 694; Chatman v. Hodnett, 

Ky. 373; Campbell v. Bates, 143 127 Ga. 360, 56 S. E. 439; Bentley 

Ala. 338, 39 So. 144. v. McCall, 119 Ga. 530, 46 S. E. 

^^ Doe ex dem. Shrewsbury v. 645. 

Keeling, 11 Q. B. 884, 17 L. J. Q. ^^ Pendleton v. Robertson, — Ttsi. 

B. N. S. 190, 12 Jur. 433. Civ. App. — , 32 S. W. 442 ; Burgin 

See Campbell v. Bates, 143 Ala. v. Chenault, 9 B. Mon. 285. 

338, 39 So. 144. le See Pendleton v. Robertson. 

12 See supra, § 190. — Tex. Civ. App. — , 32 S. W. 

^^ Jackson ex dem. Bowman v. 442. 



1140 EVIDENCE IN CRIMINAL CASES. [CHAP. XI. 

testimony, the weight and credibility of the testimony is a 
question for determination of the jury." 

§ 548. Ancient document may be verified by expert. — 

Where, for the purposes of verification, it is important to 
go back beyond thirty years, a person who is familiar (from 
having had occasion to examine old deeds and other papers 
indisputably traceable to the party whose signature is con- 
tested) with the handwriting in question may be permitted to 
testify as to the genuineness of a document.'^ 

IX. PROOF OF HANDWRITING.^ 

§ 549. Handv^riting established by the writer himself 
or his admissions. — Though the testimony of the alleged 
writer is of much value in determining the genuineness of a 
writing imputed to him,^'' it is not necessarily, even supposing 
him to be free from bias, the strongest producible.^ I may 
remember having written or signed a particular document, 
and this recollection, taken in connection with my recognition 
of my own signature, forms strong evidence. But it by no 
means follows that I am the person most able to distinguish 

^"^ Pridgen v. Green, 80 Ga. 72)7, As to competency of witness to 

7 S. E. 97; Harlan v. Howard, 79 ancient writings, see also note in 

Ky. 373; Stooksberry v. Swan, - 63 L.R.A. 984. 

Tex. Civ. App. — , 21 S. W. 694 ; ^ See also as to proof of hand- 

Holt V. Maverick, 86 Tex. 457, 25 writing, §§ 424, et seq., supra, in 

S. W. 607; Albright v. Jones, 106 chapter IX., "Witnesses." 

Ga. 302, 31 S. E. 761. i^ See Com. v. Taylor, 5 Gush. 

^ Fitzzvalter Peerage Case, 10 60S ; State v. Hooper, 2 Bail. L. 

Clark & F. 193; Jackson ex dem. 37. See, generally, supra, §§ 160, 

Bradt v. Brooks, 8 Wend. 426; 360; 1 Grim. L. Mag. 38 et seq.; 

Swcigart v. Richards, 8 Pa. 436; post, § 845. 

Cantey v. Piatt, 2 M'Gord, L. 260; 2 wills. Circumstantial Ev. 112. 

Smith V. Rankin, 20 111. 14. See post, §§ 844, et seq. 

See post, § 847. 



§ 550] DOCUMENTS. 1141 

my own writing from a skilful forgery. Those who are ex- 
perts in respect to handwriting are able to observe delicate 
shades which may be imperceptible to me, and to apply tests 
of which I may be ignorant. So, a rude penman may be un- 
able to frame his signature in such a way as to present to him 
any positive differentia. At the same time, the belief of per- 
sons accustomed to use their pens with ordinary frequency, 
as to the genuineness of their signature, is entitled to great 
consideration;^ and it is one of the benefits of the late stat- 
utes making parties witnesses, that the testimony of parties 
to their own signature can now be obtained by the ordinary 
common-law processes.'* Much less weight, however, belongs 
to the casual, extrajudicial admission of a person that a cer- 
tain writing is his. To make such admission receivable, it 
must appear that the writing was shown to him; and even 
then he may show that his admission was founded on mistake. 
But, in any view% such admission is prima facie evidence,^' 
and on indictments for libel is admissible to prove complicity 
of the defendant in a libelous publication.^ 

§ 550. Specimens prepared during the trial.- — In Eng- 
land, by statute, a person whose handwriting is in dispute may 
be called upon by the judge to write in his presence, and such 
writing may be compared with the wTiting in litigation.^ In 
this country similar statutes have been adopted, and in some 
criminal cases the accused has been compelled by the court 

' Bank Prosecutions, Russ. & R. ^ See Wharton, Crim. Law, 8th 

C. C. 378; Rex v. Newland, 2 ed. § 1623. 

East, P. C. 1001, 1002, 1 Leach, C. i See Doe ex dem. Devine v. 

L. 311. Wilson, 10 Moore, P. C. C. 502; 

4 See post, § 550. Cobbett v. Kilminstcr, 4 Fost. & F. 

6 Wharton, Ev. § 725; post, §§ 490. 
630. 684. See Hammond v. Varian, 
54 N. Y. 400. 



1142 EVIDENCE IN CRIMINAL CASES. [CHAP. XI. 

to prepare specimens of his handwriting for submission to 
the jury.^ To such evidence, however, it may be objected that 
a person who is called upon to write, in a courthouse, a piece 
for judicial inspection, may have strong motives to modify 
his usual style of writing, and in any view, such writing would 
be likely to be more formal and regular than a current business 
hand, and to perplex rather than convince experts.' Nor 
should it be forgotten that nervousness, at such a moment, may 
subdue in the writing its usual characteristics. At the same 
time, on cross-examination of a witness who has denied his 
signature, such a practice is proper and efficient, though it 
could not be compelled when the witness sets up his privilege 
in respect to self -crimination.* Neither should a party be 
permitted to manufacture evidence for himself by writing 
his name as a basis for a comparison of hands by a jurv^* 
And hence, in Massachusetts, in 1869, where the trial court 
refused to admit a paper written by the defendant, for the 
purpose of comparing it with other writing imputed to him, 
it was held to be within the province of the trial court "to re- 
fuse to permit such a signature to be written, when the cir- 

2 Supra, § 424h ; Layer's Trial, First Nat. Bank v. Robert, 41 
16 How. St. Tr. 192; Bradford v. Mich. 709, 3 N. W. 199; Doe ex 
People, 22 Colo. 157, 43 Pac. 1013; dem. Devine v. Wilson, 10 Moore, 
Smith V. King, 62 Conn. 515, 26 P. C. C. 502, 530; Chandler v. Le 
Atl. 1059; Chandler v. Le Barron, Barron, 45 Me. 534; King v. 
45 Me. 534; Huff v. Nims, 11 Neb. Donahue, 110 Mass. 155, 14 Am. 
365, 9 N. W. 548; United States Rep. 589. 

V. Mullaney, 32 Fed. 370; Sander- ^ King v. Donahue, 110 Mass. 

son V. Osgood, 52 Vt. 312. 155, 14 Am. Rep. 589. 

3 See Com. v. Allen, 128 Mass. See Hammond's Case, 2 Me. 33, 
46, 35 Am. Rep. 356; IVilliams v. 11 Am. Dec. 39; Keith v. Lothrop, 
State, 61 Ala. 33. 10 Cush, 453 ; Hynes v. McDermott, 

See also note in 62 L.R.A. 684, 82 N. Y. 41, 37 Am. Rep. 538; 

on question of comparison with post, § 559; Roe v. Roe, 8 Jones, 

writings made in court. & S. 1. 

^Gilbert v. Simpson, 6 Daly, 30; 



§ 551] DOCUMENTS. 1143 

cumstances are such that it does not appear to him to furnish 
a fair standard of comparison."® 

Evidence of handwriting by another is in no sense second- 
ary to evidence of such handwriting by the writer himself.' 

§ 551. Qualifications of the witness who saw the writ- 
ing made. — It does not follow that, because I have seen 
a person write, I am able subsequently to identify his writing 
on documents which I have never previously seen. I may see 
a person write several times without becoming by any means 
as familiar with his handwriting as I would be by maintain- 
ing with him a protracted correspondence. I may watch him 
listlessly, or at a distance, as one clerk may do another in a 
countingroom, without mastering the peculiarities of his pen- 
manship. Still, with all these qualifications, the "presumption 
ex visu scriptionis," as Mr. Bentham calls. it,^ not only lends 
to such testimony much weight, but makes it technically pri- 
mary.^ It has, however, been said that such knowledge of 

^Com. V. Allen, 128 Mass. 46, 1; State v. Anderson, 2 Bail. L. 

35 Am. Rep. 356. 565 ■,Haynie v. State, 2 Tex. App. 

"JRex V. Hazy, 2 Car. & P. 458; 168. 

Reg. V. Hurley, 2 Moody & R. 473 ; See Wharton, Ev. § 707 ; post, 

Rex V. Benson, 2 Campb. 508; % ^A6; Donoghoe w. People, 6 Vsivk. 

Smith V. Prescott, 17 Me. 277; Crim. Rep. 120; McNair v. Com. 

Ainszvorth v. Greenlee, 8 N. C. 26 Pa. 388; Smith v. Walton, 8 

(1 Hawks) 190; McCaskle v. Gill, 77; Cross v. People, 47 III. 

Amarine, 12 Ala. 17; supra, §§ 152, 95 Am. Dec. 474. 

160, 360, 424. See United States v. Crozu, 1 

13 Bentham, Judicial Ev. 598. Bond, 51, Fed. Cas. No. 14,895; 

2 Rex V. Tooke, 25 How. St. Tr. Jackson ex dem. Van Dusen v. 

71; Rex v. Hensey, 2 Ld. Kenyon, Van- Dusen, 5 Johns. 144, 4 Am. 

366, 1 Burr. 642; United States v. Dec. 330; Carrier v. Hampton, 33 

Prout, 4 Cranch, C. C. 301, Fed. N. C. (11 Ired. L.) 311; Fogg v. 

Cas. No. 16,094; Hartnng v. Peo- Dennis, 3 Humph. 47; Strong v. 

pie, 4 Park. Crim. Rep. 319; Com. Brewer, 17 Ala. 710; Shinkle v. 

V. Smith, 6 Serg. & R. 568; Hess Croock, 17 Pa. 159. 

V. State, 5 Ohio, 7, 22 Am. Dec. See also note in 63 L.R.A. 968. 
767; State v. Stalmaker, 2 Brev. 



1144 EVIDENCE IN CRIMINAL CASES. [CHAP. XI. 

handwriting, in cases where forgery is charged, must be be- 
fore the commencement of the suit; for it is argued that after 
a suit involving forgery has been instituted, a party is under 
too great a temptation to make evidence for himself to justify 
dependence on his samples of his penmanship. But this rea- 
soning, as giving an absolute rule as to time, cannot now pre- 
vail in those states in which by statute interest is for the jury, 
and not for the court, and parties are admitted to testify on 
their own behalf. Nor, on principle, can it be admitted as an 
inflexible test that evidence which a party has the opportunity 
of moulding in his own interests is to be ruled out. If all 
such evidence is to be excluded, comparatively little evidence 
could be let in. At the same time, as has been well observed,^ 
the knowledge must not have been communicated with a view 
to proof by a witness prejudiced by his employment for such 
purpose.* Thus, where, on an indictment for sending a threat- 
ening letter, the witness called to prove that the letter was in 
the handwriting of the accused was a policeman, who, after 
the letter had been received and suspicions aroused, was sent 
by his inspector to the accused to pay him some money and 
procure a receipt, in order thus to obtain a knowledge of his 
handwriting by seeing him write, his evidence was rejected 
by Maule, J., on the ground that "knowledge obtained for such 
a specific purpose and under such a bias is not such as to make 
a man admissible as a quasi expert witness."* 

3 Best, Ev. § 236. See also Doe ex dem. Perry v. 

* See the judgments of Patteson Nezvton, 5 Ad. & El. 514, 1 Nev. 

and Coleridge, JJ., in Doe ex dem. & P. 1, VV. W. & D. 403, 6 L. J. 

Mndd V. Siickermore, 5 Ad. & El. Q. B. N. S. 1. 

703, 2 Nev. & P. 16, W. W. & ^ Reg. v. Crouch, 4 Cox, C. C. 

D. 405, 7 L. J. Q. B. N. S. 3Z; 163. 

s. p. Keith V. Lothrop, 10 Cush. But see contra, Reid v. State, 20 

453; supra, § 558. Ga. 681. 



§ 552] DOCUMENTS. 1145 

§ 552. Qualifications of witness by showing familiarity 
with the handwriting. — Not only, therefore, must we con- 
clude tliat knowledge of handwriting obtained exclusively by 
correspondence is not secondary to knowledge obtained by 
seeing the party write, but we must hold that knowledge ob- 
tained of handwriting by long correspondence, or by continu- 
ous business association with a party {e. g., as in the case of 
bank teller with depositor), is entitled, when the witness is 
experienced and reliable, to peculiar credit; and eminently is 
this the case when the witness has, in prior transactions, staked 
much on the knowledge which he is called on to attest, though 
he may never have seen the party write.^ It is sufificeint to 
admit in such evidence that there is an acknowledgment, ex- 
press or implied, by the party writing, of the writings from 
which the opinion of the witness is drawn.^ If, for instance, 
W. writes to P. by post, to P.'s usual address, and an answer, 
purporting to come from P., is received by W. by post, this, 
if the correspondence continues, raises a presumption that P.'s 
letter is genuine, and thus enables W. to take it as the basis 
of his opinion as to P's handwriting.^ To notice another il- 
lustration, — persons familiar with the signature of the officers 
of the bank to bank notes, such notes being proved to be treat- 
ed by the bank as good, may be permitted to prove such sig- 

1 See supra, § 548 ; also note in 2 Pick. 47 ; United States v. Simp- 

63 L.R.A. 971. son, 3 Penr. & W. 437, 24 Am. Dec. 

^Rex V. Slaney, 5 Car. & P. 213; 331; Com. v. Smith, 6 Serg. & R. 

Doe ex dem. Mudd v. Suckermore, 568; State use of Med ford v. 

5 Ad. & El. 731, s. c. 2 Nev. & P. Spence, 2 Harr. (Del.) 348; State 

46, W. W. & D. 405, 7 L. J. Q. B. v. Candler, 10 N. C. (3 Hawks) 

N. S. 33; United States v. Keen, 393; May v. State, 14 Ohio, 461, 

1 McLean, 429, Fed. Cas. No. 15,- 45 Am. Dec. 548; Johnson v. State, 

510; Re 3109 Cases of Champagne, 35 Ala. 370; supra, § 845. 
1 Ben. 241, Fed. Cas. No. 14,012; ^ Carey v. Pitt, Peake, N. P. 

Hammond's Case, 2 Me. ^3, 11 Am. Add. Cas. 130, 4 Revised Rep. 895; 

Dec. 39; State v. Hopkins, 50 Vt. Gotdd v. Jones, 1 W. Bl. 384; 

316, 3 Am. Crim. Rep. 357; Com. Wharton, Ev. § 708. 
V. Peck, 1 Met. 428; Com. v. Carey, 



1146 



EVIDENCE IN CRIMINAL CASES. [CHAP. XI. 



natures, although they were not personally acquainted with 
the writers.* On the other hand, the testimony of a person, 
not an expert, familiar with the writing of a person charged 
with forgery, that the defendant did not commit a particular 
forgery, has been held inadmissible,* though this ruling may 
be gravely questioned.^ 

It is a prerequisite to the admission of such proof that the 
writings from which the witness has drawn his knowledge 
should be genuine.' It will not be enough that the witness 
obtains his knowledge from letters whose genuineness is in 
dispute.' It may be added that this kind of testimony is not 
excluded, as has been already noticed, by the fact that the 
writer of the instrument is himself in court, and could be 
called.' 

§ 553. Burden of proof as to genuineness of handwrit- 
ing. — A witness called to testify as to handwriting, and 



^ State V. Carr, 5 N. H. 367 
Amherst Bank v. Root, 2 Met. 522 
State V. Stalmaker, 2 Brev. 1 
State V. Candler, 10 N. C. (3 
Hawks) 393; Allen v. State, 3 
Humph. 367; Willson v. Belts, 4 
Denio, 201 ; Bank of the Common- 
wealth V. Mudgett, 44 N. Y. 514; 
Johnson v. Daverne, 19 Johns. 134, 
10 Am. Dec. 198; Donoghoe v. 
People, 6 Park. Crim. Rep. 120; 
Hess V. State, 5 Ohio, 5, 22 Am. 
Dec. 767; Sill v. Reese, A7 Cal. 
294. 

^ Burr ess v. Com. 27 Gratt. 934; 
supra, § 562. 

6 Supra, § 559. 

"^ Doe ex dem. Miidd v. Sucker- 
more, 5 Ad. & El. 731, 2 Nev. & 
P. 16, W. W. & D. 405, 7 L. J. 
Q. B. N. S. 23; Cochran v. Butter- 



Md, 18 N. H. 115, 45 Am. Dec. 
363 ; McKeone v. Barnes, 108 Mass. 
344; Com. v. Coe, 115 Mass. 481: 
Cunningham v. Hudson River 
Bank, 21 Wend. 557; Boyle v. 
Colman, 13 Barb. 42; Magie v. 
Osborn, 1 Robt. 689. 

8 National Union Bank v. Marsh, 
46 Vt. 443; Goldsmith v. Bane, 8 
N. J. L. 87; McKonkey v. 
Gay lord, 46 N. C (1 Jones, L.) 
94. 

See Rex v. Bcnsen, 2 Campb. 
508; Long v. State, 10 Tex. App. 
186. 

9 Supra, §§ 160, 360. 551; Smith 
V. Prescott, 17 Me. 277; Ainsworth 
V. Greenlee, 8 N. C. (1 Hawks) 
190; Pomeroy v. Golly, Ga. Dec. 
pt. 1, p. 26; McCaskle v. Amarine, 
12 Ala. 17. 



§ 554] DOCUMENTS. 1147 

who establishes a prima facie case of acquaintance with the 
handwriting of the person whose signature is in dispute, will 
be admitted by the court to testify,^ though before his admis- 
sion he may be cross-examined as to his opportunities, so that 
his qualifications may be tested by the court.^ It is not nec- 
essary that the witness should swear to an actual belief in the 
genuineness of a writing. It is enough if he states his opinion 
as to such genuineness.^ Lord Kenyon went so far as to hold 
that it was admissible for a witness to testify merely that the 
contested writing was like the handwriting of the party to 
whom it is charged ; * and though this had been doubted by 
Lord Eldon* yet it is hard to say why the value of such testi- 
mony is not as much for the jury as for the court.^ 

§ 554. Testing the witness's qualifications on cross- 
examination. — A witness may, on cross-examination, be 
tested by putting to him other writings, not admitted in evi- 
dence in the case, and asking him whether such writings are 
in the same hand with that in litigation.^ The tendency, also, 

"^De la Motte's Case, 21 How. ^Garrells v. Alexander, 4 Esp. 

St. Tr. 810; Goodhue v. Bartlett, 37, approved by Lord Wynford, 

5 McLean, 186, Fed. Cas. No. at N. P. 

5,538; Moody v. Rowell, 17 Pick. See 2 Phillipps, Ev. 359, note 2; 

490, 28 Am. Dec. 317; Whittier v. Wharton, Ev. §§ 531, et seq. 

Gould, 8 Watts, 485; Barwick v. ^ Eagleton v. Kingston, 8 Ves. 

Wood, 48 N. C. (3 Jones, L.) 306; Jr. 476. 

Henderson v. Baiik at Montgomery, See also Cruise v. Clancy, 6 Ir. 

11 Ala. 855. Eq. Rep. 552; Taylor v. Sutherland, 

2 See Rogers v. Ritter, 12 Wall. 24 Pa. 333; Taylor, Ev. § 1666. 
317, 20 L. ed. 417; Slaymaker v. ^ See 3 Bentham, Judicial Ev. 
Wilson, 1 Penr. & W. 216. 599. 

3 Watson V. Brewster, 1 Pa. St. ^ See State v. Hopkins, 50 Vt. 
381; Shitler v. Bremer, 23 Pa. 413; 316, 3 Am. Crim. Rep. 357. 
Clark V. Freeman, 25 Pa. 133; The whole subject of exam- 
Fash V. Blake, 38 111. 363; Hopper ination of witnesses to handwriting 
V. Ashley, 15 Ala. 463. is treated in a note in 65 L.R.A. 

And see Utica Ins. Co. v. Badger, 151. 
3 Wend. 102; supra, § 462. 



1 148 EVIDENCE IN CRIMINAL CASES. [CHAP. XI. 

is to hold that the test writings, if declared by the witness to 
be genuine, n:ay be shown by the cross-examining party to be 
not genuine, and may be given to the jury for comparison.^ 
But a witness when called to testify as to his own writing 
should have the whole paper before him in order to enable him 
to make up his judgment. Hence, on examination of a party 
as to whether a certain writing is his, he cannot be compelled 
to answer whether the signature is his unless he is permitted 
to examine the paper to which it is appended.^ 

§ 555. Proof by comparison not admitted at common 
law. — In England, in the common-law courts, comparison 
of hands as a mode of determining the genuineness of a writ- 
ing or of handwriting was inadmissible,^ but, as we have al- 
ready seen, the common law has been so modified, both in 
England and in the United States, that comparison with any 
writing proved to be genuine is the rule by statute, except in 
the states of Louisiana and North Carolina, where no jury 
comparison is permitted.^ 

§ 556. Comparison with writings properly in evi- 
dence. — By the courts excluding comparison in hands a 
single exception is made, — when a writing proved to be that 
of the party whose signature is in litigation is already in evi- 

2 See Griffiths v. Ivcry, 11 Ad. & Q. B. N. S. 33; Bromage v. Rice. 

EI. 322, 3 Perry & D. 179, 9 L. 7 Car. & P. 548; Hughes v. Rogers, 

J. Q. B. N. S. 49; Young v. 8 Alces. & W. 123, 10 L. J. Exch. 

Homier, 2 Moody & R. 537, 1 Car. N. S. 238. 

& K. 51; supra, § 562. See remarks of Sir S. Romilly 

^ North American F. Ins. Co. v. in the Duke of York's Case, 1 

Throop, 22 Mich. 146, 7 Am. Rep. Browne, St. Tr. 267. 

638. 2 Supra, § 424e. 

^2 Garrells v. Alexander, 4 Esp. The question of comparison of 

37; Doe ex dem. Mudd v. Sucker- handwriting is the subject of a 

more. 5 Ad. & El. 703, 2 Nev. & note in 62 L.R.A. 81& 
P. 16, W. W. & D. 405, 7 L. J. 



§ 557] 



DOCUMENTS. 



1149 



dence, having been put in for other purposes, then it is ad- 
missible to resort to this writing in order to determine the 
genuineness of the htigated instrument.^ 

§ 557. Writings admissible as a basis of comparison. — 

In some states^ it is the practice to admit as a basis of com- 
parison any papers, whether in themselves relevant to the is- 
sue or not, if they can be shown to the satisfaction of the 
court to be the writings of the party whose writing is dis- 
puted.^ In Pennsylvania, however, it is said that at common 



^ Solita V. 'Yarroiv, 1 Moody & 
R. 133; Waddington v. Cousins, 
7 Car. & P. 595; Doe ex deni. 
Perry v. Newton, 1 Nev. & P. 1, 
5 Ad. & El. 514, W. W. & D. 
403, 6 L. J. K. B. N. S. 1 ; Myers 
V. Toscan, 3 N. H. 47; State v. 
Carr, 5 N. H. 367; Van Wyr.k v. 
Mcintosh, 14 N. Y. 439 ; Randolph 
V. Loughlin, 48 N. Y. 456; Good- 
year V. Vosbiirgh, 62> Barb. 154; 
Williams v. Drexel, 14 Md. 566; 
Duncan v. Beard, 2 Nott. & M'C. 
401; Yates v. Yates, 76 N. C. 143; 
Doe ex dent. Henderson v. Roe, 
16 Ga. 521 ; Northern Bank v. 
Buford, 1 Duv. 335 ; Brobston v. 
Cahill, 64 111. 358; Van Sickle v. 
People, 29 Mich. 61; People v. 
Cline, 44 Mich. 291, 6 N. W. 671 ; 
State V. Miller, 47 Wis. 530, 3 N. 
W. 31; State v. Tompkins, 71 Mo. 
613 ; Moore v. United States, 91 U. 
S. 270, 23 L. ed. 346. 

See Medzuay v. United States, 6 
Ct. CI. 421; United States v. 
Chamberlain, 12 Blatchf. 390, Fed. 
Cas. No. 14,778. 

As denying this e.xception, see 
Tome V. Parkersburg Branch R. Co. 



39 Md. 90, 17 Am. Rep. 540; Out- 
law V. Hurdle, 46 N. C. (1 Jones, 
L.) 150; Otey v. Hoyt, 48 N. C. 
(3 Jones, L.) 407. 

See also remarks of Davis, J., in 
Rogers v. Ritter, 12 Wall. 322, 20 
L. ed. 419; United States v. Jones, 
13 Rep. 165, 20 Blatchf. 235, 10 
Fed. 469; Baker v. Squier, 1 Ilun, 
448, s. c. 3 Thomp. & C. 465; and 
note in 62 L.R.A. 862; Bank of 
Commonwealth v. Mudgett, 44 N. 
Y. 514; s. c. 45 Barb. 663; Ellis 
V. People, 21 How. Pr. 365; Peo- 
ple V. Spooner, 1 Denio, 343, 43 
Am. Dec. 672; Pontius v. People, 
82 N. Y. 339; Merritt v. Campbell, 
79 N. Y. 625; Miles v. Loomis, 75 
N. Y. 288, 31 Am. Rep. 470; s. p. 
Hynes v. McDermott, 82 N. Y. 41, 
Z7 Am. Rep. 538. 

See post, § 569; supra, § 424e. 

1 See supra, § 424e. 

The whole subject of competency 
of handwriting as standard for 
comparison is treated in a note in 
63 L.R.A. 428. 

^Hammond's Case, 2 Me. Z2>, 11 
Am. Dec. 39; Page v. Homans, 14 
Me. 478; IVoodman v. Dana, 52 



1150 



EVIDENCE IN CRIMINAL CASES. [CHAP. XI. 



law the proof from comparison of hands must be viewed as 
supplementary, and cannot be relied on exclusively,^ and that 
the comparison is to be made by the jury, not by experts.* 
To the admission of a test paper it is essential that it should 



Me. 9; Myers v. Toscan, 3 N. H. 
47; State v. Hastings, 53 N. H. 452; 
Adams v. Field, 21 Vt. 256; State 
V. Ward, 39 Vt. 225 ; State v. Hop- 
kins, 50 Vt. 316, 3 Am. Crim. Rep. 
357; Homer v. Wallis, 11 Mass. 309, 
6 Am. Dec. 169; McKeone v. 
Barnes, 108 Mass. 344; Com. v. 
Coe, 115 Mass. 481; Demerritt v. 
Randall, 116 Mass. 331 ; Moody v. 
Rowell, 17 Pick, 490, 28 Am. Dec. 
317; Richardson v. Newcomb, 2\ 
Pick. 315; Com. v. Eastman, 1 
Cush. 189, 48 Am. Dec 596; Keith 
V. Lothrop, 10 Cush. 453 ; Martin v. 
Maguire, 7 Gray, 177; Com. v. Wil- 
liams, 105 Mass. 62; Com. v. Whit- 
man, 121 Mass. 361 ; Lyon v. 
Lyman, 9 Conn. 55 ; State v. Net- 
tleton, 1 Root, 308 ; Tyler v. Todd, 
36 Conn. 218; M'Corkle v. Binns, 

5 Binn. 340, 6 Am. Dec. 420; Far- 
mers' Bank V. Whitehill, 10 Serg. 

6 R. 110; Baker v. Haines, 6 
Whart. 284, 36 Am. Dec. 224 
Travis v. Brown, 43 Pa. 9, 82 Am 
Dec. 540 ; Haycock v. Greup, 57 Pa 
438; firaf/fif v. Cohvell, 19 Ohio St 
407; Calkins v. 5;a/e, 14 Ohio St 
222; Koons v. State, 36 Ohio St 
198 ; Robertson v. ilf ;7/^r, 1 McMull 
L. 120; Whitney v. Bunnell, 8 La 
Ann. 429 ; State v. FriV^, 23 La. Ann 
55; Garvin v. State, 52 Miss. 209 
Macomber v. 5co«, 10 Kan. 340 
State V. Tompkins, 71 Mo. 613; 
5"/a?^ V. Owen, 72 Mo. 440. 



See Baker v. Mygatt, 14 Iowa, 
131 ; Singer Mfg. Co. v. McFarland, 
53 Iowa, 540, 5 N. W. 739. 

3 Haycock v. Greup, 57 Pa. 438. 

4 r;-a-j!.y V. 5rown, 43 Pa. 9, 82 
Am. Dec. 540; Clayton v. Siebert, 
3 Brewst. (Pa.) 176. 

See 5/a?^ v. Scott, 45 Mo. 302; 
Huston V. Schindler, 46 Ind. 38. 

See 1 Brightly's Purdon, 631 ; 
Sweigart v. Richards, 8 Pa. 436; 
McNair v. Com. 26 Pa. 388. 

See Redford v. Peggy, 6 Rand. 
(Va.), 316; Power v. Frick, 2 
Grant, Cas. 306; s. p. Aumick v. 
Mitchell, 82 Pa. 211; Fan 5iV^/^ v. 
P^o/)/^, 29 Mich. 61 ; Re Foster, 34 
Mich. 21 ; People v. Gale, 50 Mich. 
237, 15 N. W. 99 ; Pate v. People, S 
111. 644; Brobston v. Cfl/n7/, 64 111 
356; State v. Miller, 47 Wis. 530, 
3 N. W. 31. 

See Hazleton v. Union Bank, 32 
Wis. 47; State v. Clinton, 67 Mo. 
380, 29 Am. Rep. 506, 3 Am. Crim. 
Rep. 132; State v. Tompkins, 71 
Mo. 613; Cmf V. 5" /aft?, 21 Ala. 
137; Mayo v. State, 30 Ala. 32; 
Kirksey v. Kirksey, 41 Ala. 626; 
.B^.y/or V. Roberts, 58 Ala. 331. 

See post, § 849; Bennett v. Ma- 
thewes, 5 S. C. 478; Boman v. 
Plunkett, 2 M'Cord, L. 518; Bird 
V. Mf//^r, 1 McMull. L. 125 ; Boggus 
V. State, 34 Ga. 278. 



§§ 558, 559] 



DOCUMENTS. 



1151 



be either conceded by the writer to be genuine, or proved to be 
so to the entire satisfaction of the court.* 

The mere finding of a diary on a party, with an admission 
by him that it belonged to him, is not a sufficient authentica- 
tion of the writing to justify its use as a standard.^ Press 
copies cannot be introduced as a basis of comparison, even 
where the original would be admissible; ' nor can photographic 
copies.* 

§ 558. Standards of comparison must be genuine. — A 
test paper, to be admitted for the purpose of forming a basis 
for comparison, should be free from any suspicion of con- 
coction in order to affect the litigated issue.^ 

§ 559. Admissibility of expert testimony. — An expert, 
apart from the vexed question of comparison of hands, is 
admissible to determine whether a contested writing is feigned 
or natural;^ though in absence of evidence on behalf of the 



^McKeone v. Barnes, 108 Mass. 
344; Com. v. Coe, 115 Mass. 503, 
Heard v. State, 9 Tex. App. 1 ; 
Heacock v. State, 13 Tex. App. 97. 

See § 424c, supra. 

6 Van Sickle v. People, 29 Mich. 
61. 

"^ Com. V. Eastman, 1 Cush. 189, 
48 Am. Dec. 596. 

See Com. v. Jeffries, 7 Allen, 561, 
83 Am. Dec. 712; supra, § 177. 

8 Supra, § 544; Tome v. Parkers- 
burg Branch R. Co. 39 Md. 90, 91- 
93, 17 Am. Rep. 540. 

See § 424f, supra. 

1 Supra, §§ 551, 552; King v. 
Donahue, 110 Mass. 155, 14 Am. 
Rep. 589; R. v. Castro, Charge li. 
770, et seq. ; United States v. Cham- 
berlain, 12 Blatchf. 390, Fed. Cas. 



No. 14,778; Com. v. Coe, 115 Mass. 
481. 

As to what genuine documents 
are competent standards, see note 
in 63 L.R.A. 438. 

* Sweet ser v. Lowell, Z2i Me. 448 ; 
Withee v. Rowe. 45 Me. 571 ; Moody 
V. Rowell, 17 Pick. 490, 28 Am. Dec. 
317; Com. v. Webster, 5 Cush. 295. 
52 Am. Dec. 711 ; Demerritt v. Ran- 
dall, 116 Mass. 331 ; Lyon v. Lyman, 
9 Conn. 55 ; Lansing v. Russell, 3 
Barb. Ch. 325 ; Goodyear v. Vos- 
burgh, 63 Barb. 154; Van Wyck v. 
Mcintosh, 14 N. Y. 439 ; Dubois v. 
Baker, 30 N. Y. 355 ; Hynes v. Mc- 
Dermott, 82 N. Y. 41, 37 Am. Rep. 
538; People v. Hezvit, 2 Park. Crim. 
Rep. 20 ; Reese v. Reese, 90 Pa. 89, 
35 Am. Rep. 634; Hiibley v. Van- 



1152 



EVIDENCE IN CRIMINAL CASES. [CHAP. XI. 



party charged that the signature is simulated, an expert will 
not be received to prove it was not simulated.^ So experts are 
permitted to testify as to the period to which a writing may 
be assigned ; ^ as to the nature of the ink or other material 
used ; * whether a certain writing shows comparative ease and 
facility ; ^ whether certain figures in a check have been 
changed;^ what is the difference between the substance of an 
instrument and a forged addition f whether certain words 
were written before a paper was folded ; ' what is the meaning 
of certain illegible marks or signs ; ^ whether the whole of an 
instrument was written by the same hand, with the same pen 
and ink, and at the same time ; ^° whether a certain bank note 
is counterfeit,^^ and for this purpose business men, long fa- 



lioruc, 7 Serg. & R. 185; Calkins v. 
State, 14 Ohio St. 222; Jones v. 
Finch, 37 Miss. 461, 75 Am. Dec. 
73, 18 Am. L. Reg. N. S. 266. 

As to competency of expert wit- 
ness, see note in 63 L.R.A. 985. 

2 Kozving v. Manly, 49 N. Y. 193. 
10 Am. Rep. 346 ; s. c. 57 Barb. 479, 
qualifying People v. Hewit, 2 Park. 
Crim. Rep. 20. 

See also Merchant's Will, Tuck- 
er, 151 ; People v. Spooner, 1 Denio, 
343, 43 Am. Dec. 672; Burress v. 
Com. 27 Gratt. 934 ; Sayres v. State, 
30 Ala. 18. 

See Bank of Pennsylvania v. Hal- 
deman, 1 Penr. & W. 161 ; Lodge 
V. P hip her, 11 Serg. & R. 333. 

See also review of Robinson v. 
Mandell, in 4 Am. L. J. 625 ; supra. 
§ 9 ; post, § 847. 

3 Doe ex deni. Miidd v. Sucker- 
more, 5 Ad. & El. 703, 2 Nev. & P. 
16, W. W. & D. 405. 7 L. J. Q. B. 
N. S. 33; Reg. v. IVilliams, 8 Car. 
& P. 434 ; Tracy Peerage Case, 10 



Clark & F. 154; Davis v. Mason, 4 
Pick. 156. 

Se^ People v. Spooner, 1 Denio, 
343, 43 Am. Dec. 672. 

^Dubois v. Baker, 30 N. Y. 355. 

6 Demcrritt v. Randall, 116 Mass. 
331. 

^Nelson v. Johnson, 18 Ind. 329; 
Pate V. People, 8 III. 644. 

'^ Hawkins v. Grimes, 13 B. Mon. 
257. 

See Daniel v. Toney, 2 Met. 
(Ky.) 523. 

* Bacon v. Williams, 13 Gray, 
525. 

9 Stone V. Hubbard. 7 Cush. 595 ; 
Collcnder v. Dinsmore, 55 N. Y. 
200, 14 Am. Rep. 224. 

^^ Quinsigamond Bank v. Hobbs, 
11 Gray, 250; Fulton v. Hood, 34 
Pa. 365, 75 Am. Dec 664. 

See Jewett v. Draper, 6 Allen, 
434 ; Ballentine v. White, 77 Pa. 25. 

^1 Jones V. Finch, 37 Miss. 461, 75 
Am. Dec. 73. 



§ 560] 



DOCUMENTS. 



1153 



miliar with the notes, can be called ; ^^ whether certain words 
were written over others ; ^' and as to the date and meaning 
of certain words upon an erasure.^* It has, however, been 
held inadmissible to ask an expert as to a remote contingency, 
as to which no special professional experience is needed to 
speak; " nor can an expert be examined as to how far a per- 
son may improve his handwriting in a given time. ^® 

§ 560. Comparison by expert; ancient writings. — When 
comparison of hands is permitted, an expert can be called to 
make such comparison.^ It has, however, been said that an 



^^ State V. Cheek, 35 N. C. (13 
Ired. L.) 114. 

13 Dubois V. Baker, 30 N. Y. 355. 

1* Dubois V. Baker, 30 N. Y. 355 ; 
s. c. 40 Barb. 556; Vinton v. Peck, 
14 Mich. 287. 

See Sivan v. O'Fallon, 7 Mo. 231. 

15 Thayer v. Cheslcy, 55 Me. 393. 

^^ McKeone v. Barnes, 108 Mass. 
344. 

13 Bentham, Judicial Ev. 599; 
United States v. Keene, 1 McLean, 
429, Fed. Cas. No. 15,510; United 
States V. Chamberlain, 12 Blatchf. 
390, Fed. Cas. No. 14,778; Hatn- 
mond's Case, 2 Me. ZZ, 11 Am. Dec. 
39; Woodman v. Dana, 52 Me. 9; 
Furber v. Milliard, 2 N. H. 480; 
State V. Carr, 5 N. H. 371; Stat'.' 
V. Shinborn, 46 N. H. 497, 88 Am. 
Dec. 224; State v. Ravelin, 1 D. 
Chip. (Vt.) 295; State v. Ward, 39 
Vt. 225 ; Moody v. Rowell, 17 Pick. 
490, 28 Am. Dec. 317; Com. v. 
Riley, Thatcher Crim. Cas. 67 ; 
Amherst Bank v. Root, 2 Met. 522; 
Com. V. Williams, 105 Mass. 62 ; 
Lyon V. Lyman, 9 Conn. 55 ; People 
V. Caryl, 12 Wend. 547; Phoenix F. 
Crim. Ev. Vol. II.— 73. 



Jns. Co. V. Philip, 13 Wend. 81; 
Finch V. Gridley, 25 Wend. 469; 
Roe V. Roe, 8 Jones & S. 1 ; People 
V. Hewit, 2 Park. Crim. Rep. 20; 
Jackson ex dem. Kip v. Murray, 
Anthon, N. P. 105; West v. State. 
22 N. J. L. 212; Com. v. Smith, 6 
Serg. & R. 568; Hubley v. Van- 
horne, 7 Serg. & R. 185 ; Lodge v. 
Phipher, 11 Serg. & R. 333; Power 
V. Frick, 2 Grant, Cas. 306 ; Swei- 
gart v. Richards, 8 Pa. 436; Burk- 
holder v. Plank, 69 Pa. 225; Ballen- 
tine V. White, 77 Pa. 20; Koons v. 
State, 36 Ohio St. 195; State v. 
Owen, 73 Mo. 440. 

Contra : 

Titford V. Knott, 2 Johns. Cas. 
211; Bank of Pennsylvania v. 
Haldeman, 1 Penr. & W. 161 ; Niller 
V. Johnson, 27 Md. 6; Huston v. 
Schindler, 46 Ind. 38; 5/af^ v. //ar- 
rij, 27 N. C. (5 Ired. L.) 287; State 
V. Tj<«, 2 Bail. L. 44, 21 Am. Dec 
508; Bird v. Miller, 1 McMull. L 
125 ; Bennett v. Mathczves, 5 S. C, 
478; Johnson v. 5"taf^. 35 Ala. 370 
Moj'^ V. Herndon, 30 Miss. 110; 
Jones V. Finch, 37 Miss. 461, 75 



1154 EVIDENCE IN CRIMINAL CASES. [CHAP. XI. 

expert cannot, as to an ancient writing, be admitted to give 
his conclusion from a comparison of hands,^ though if no 
other proof is attainable such testimony should be received 
for what it is worth. ^ 

§ 561. Photographers' testimony as to handwriting. — 
Photographers who have been accustomed to scrutinize hand- 
writing in reference to forgeries, and have been in the habit 
of using photographic copies for this purpose, may be exam- 
ined as experts in questions of forgery, even though their 
opinion is founded partly on photographic copies, which they 
have themselves made, and which have been put in evidence.^ 
To enable, however, such photographic copies to be put in 
evidence, their accuracy and fairness must be proved.^ 

§ 562. Cross-examination of experts. — An expert is 
open to cross-examination as to his qualifications,^ and he 
may be probed by test papers that may be presented to him.^ 



Am. Dec. 73; Hanley v. Gaudy, 28 Mandell, cited supra, § 9, post, 

Tex. 211, 91 Am. Dec. 315; Miles § 847. 

V. Loomis, 75 N. Y. 288. 31 Am. Photographic copies for compari- 

Rep. 470. son of handwriting, see note in 35 

See Merritt v. Campbell, cited L.R.A. 812. 

supra, § 556 ; Fulton v. Hood, 34 ^ Marcy v. Barnes, 16 Gray, 161., 

Pa. 365, 75 Am. Dec. 664; Travis 77 Am. Dec. 405. 

V. Brown, 43 Pa. 9, 82 Am. Dec. See Taylor's Will, 10 Abb. Pr. N. 

540. S. 301; Tyler v. Todd. 36 Conn. 

As to competency of expert wit- 218; Robinson v. Mandell, cited su- 

ness for comparison, see note in 63 pra, § 9, post, § 847; Tome v. Par- 

L.R.A. 937. kersburg Branch R. Co. 39 Md. 36, 

2 Fitswalter Peerage Case, 10 17 Am. Rep. 540. 
Clark & F. 193 ; supra, § 548. See supra, § 544. 

3 Supra, § 548. i See supra, §§ 407-420, 425. 

^ Marcy V. Barnes, 16 Gray, 161, ^ Supra. §§ 510, 554; Demerritt 

77 Am. Dec. 405. v. Randall. 116 Mass. 331; Biirress 

See Taylor's Will, 10 Abb. Pr. N. v. Com. 27 Gratt. 934; Goldstein v. 

S. 301 ; Tyler v Todd, 36 Conn. 218. Black. 50 Cal. 462. 

See supra, § 544; Robinson v. 



§ 563] DOCUMENTS. 1155 

Unless it is shown that he is en ' led to testify as an expert, 
he should not be received as such.^ 

§ 563. Considerations in weighing expert testimony. — 

Expert testimony should in all cases be closely scrutinized/ 
and there is peculiar reason why this scrutiny should be ap- 
plied to questions of identity of handwritings. If the ex- 
pert can produce in court the writings, and explain the grounds 
of his conclusions, the difficulties are much reduced; but it 
must be remembered that there are few branches of law on 
which interests so momentous (e. g., devolution of large es- 
tates, convictions of forgery) depend upon tests so exquisitely 
delicate as those applied to handwriting. It is well known 
that in cases of peculiar difficulty, when the difference, if 
there be any, between the handwritings, is only noticeable by 
perceptions the most sensitive, experts, no matter how con- 
scientious, often take unconsciously such a bias from the party 
employing them as to give to their judgment the almost in- 
finitely slight impulse that turns the scale ; nor is it strange that 
in an instrument so delicate, aberrations from its true course 
should be produced by attractions or repulsions otherwise un- 
appreciable. 

The personal factor in all expert testimony is far more 
evident than it is in the testimony of those witnesses that 
testify to facts that are matters of general knowledge and com- 
mon observation. For this reason it is better for the court 
to instruct the jury that they shall accept the testimony of an 
expert as to handwriting, even when uncontradicted, as an 
argument, rather than as proof of the fact,^ and make allow- 

^ State V. Tompkins, 71 Mo. 613; ^ Supra, § 420; Koons v. State, 36' 

Haun V. State, 13 Tex. App. 383, 44 Ohio St. 195. 

Am. Rep. 706; Heacock V. State, 13 2Wharton, Ev. § 722, citing 

Tex. App. 97. Tracy Peerage Case, 10 Clark & F. 



1156 EVIDENCE IN CRIMINAL CASES. [CHAP. XI. 

ance for those personal factors which, to an extent at least, 
may influence the judgment of the expert.^ 

X. Inspection of Documents by Order of Court. 

§ 564. Production of documents; materiality. — The rule 
relating to the production of documents, either before or at 
the trial of a criminal case, does not differ from the rule ap- 
plied in civil cases, except of course that no defendant can be 
compelled to produce a document that would incriminate him. 
and this exception extends also to the party holding a docu- 
ment the production of which might incriminate such party.^ 
In cases not affected by this limitation, the accused is entitled 
to a rule for the inspection of such documents in the hands 
of the opposite party as are essential to his defense. Thus, 
a defendant is entitled to inspect certain letters material to 
the issue, in the hands of the prosecution.^ Where such in- 
spection is provided for by statute, the conditions of the stat- 
ute must be complied with, but where the production is not 
statutory controlled, it is clearly within the inherent power 
of the court to cause such document to be produced, under 
such conditions as the court may prescribe. 

The first esssential to such production is to show to the 
court that the document sought is relevant to the issue.' W^ien 

191 ; Gurney v. Laiiglands, 5 Barn. 2 Reg. v. Coluci, 3 Fost. & F. 103 ; 



& Aid. 330, 24 Revised Rep. 396 
Reg. V. Crouch, 4 Cox, C. C. 163 
Cowan V. Beall, 1 MacArth. 270 



Rex V. Harrie, 6 Car. & P. 105. 

3 Livennore v. St. John, 4 RobL 
12; Bailey v. Williams Mfg. Co. 9 



Borland v. Walrath, 33 Iowa, 130. N. Y. S. R. 518; State ex rel. Bos- 
See supra, § 420. ton & M. Consol. Copper & S. Min. 
3 See Robinson v. Mandell. cited Co. v. District Ct. 30 Mont. 206, 76 

6upra, § 9. Pac. 206. 

Also note in 62 L.R.A. 871, as to See Palmer v. United Press, 67 

weight of evidence as to compari- App. Div. 64, 72 N. Y. Supp. 456; 

son of handwriting. United States V. Burr, Fed. Cas. 

iPost, § 566; State v. Wallahan, No. 14,694. 

Tappan (Ohio) 48. 



§§ 564a, 565] documents. 1157 

this essential requirement is complied with, the court, accord- 
ing to the circumstances of the case, will order the production 
of the document. However, in criminal cases, it is very evi- 
dent that the accused cannot compel the prosecution to pro- 
duce documents which he himself has made. Thus, he is not 
entitled to have incriminating letters, written by him, produced 
for his inspection ; * nor to have produced a statement made 
and signed by accused, even on the ground that such state- 
ment is material to his defense.^ 

§ 564a. Inspection of minutes of grand jury. — The gen- 
eral rule is that an accused in a criminal case has no right to 
an inspection of the minutes of the grand jury returning the 
indictment against him, either before or during the trial, ^ but 
this is a matter resting in the discretion of the court, and, 
where some special reason exists, such as to enable the accused 
to properly move to set aside the indictment, he may be per- 
mitted to inspect the minutes of the proceedings.^ 

§ 565. Custody of documents. — Although when a docu- 
ment which appears to have been forged or stolen is produced 

^ Morrison V. State, 40Tex. Crim. States v. Sotithmayd, 6 Biss. 321, 

Rep. 473, 51 S. W. 358. Fed. Cas. No. 16,361. 

See People v. Jackson, 182 N. Y. But see People v. Foody, 38 Misc. 

66, 74 N. E. 565. 357, 17 N. Y. Crim. Rep. 8, 77 N. 

estate V. Fitzgerald, 130 Mo. 407, Y. Supp. 943. 

32 S. W. 1113. ^People v. Jaehne, 4 N. Y. Crim. 

^Hofler V. State, 16 Ark. 534; Rep. 161; People v. Richmond, 5 N. 

Cannon v. People, 141 111. 270, 30 N. Y. Crim. Rep. 97 (under code pro- 

E. 1027; Howard v. Com. 118 Ky. 1, vision) ; People v. Naughton, 38 

80 S. W. 211, 81 S. W. 704. See s. How. Pr. 430; People v. Coney 

c. 200 U. S. 164, 50 L. ed. 421, 26 Island Jockey Club, 68 Misc. 302, 

Sup. Ct. Rep. 189; People v. Pros- 123 N. Y. Supp. 669; People v. 

key, 32 Misc. 367, 15 N. Y. Crim. Gresser, 124 N. Y. Supp. 581. 

Rep. 144, 66 N. Y. Supp. 736; State See also note in 27 L.R.A.(N.S.) 

V. Rhoads, 81 Ohio St. 397, 27 558, on right of indicted person to 

L.R.A.(N.S.) 558, 91 N. E. 186. 13 inspect minutes of grand jury. 
A. & E. Ann. Cas. 415; United 



1158 EVIDENCE IN CRIMINAL CASES. [CHAP. XI. 

in court, the court may order it to be impounded,^ the court 
will not, under a mere order for inspection, compel the im- 
pounding of papers, or their deposit with an officer of the 
court or any third party. The owner of the document is al- 
lowed to keep it in possession. The order simply permits its 
inspection, while in the hands of the owner or his attorney, 
by the opposing party or by witnesses.^ But, where docu- 
ments are admitted in evidence on behalf of the prosecution, 
in a criminal cause, where they are not of that kind that are 
required by law to be kept in the custody of a particular per- 
son, they should be left with the clerk of the court during the 
trial.' 

§ 566. Production of criminatory documents will not 
be compelled. — We have just stated that the court will 
not compel the production of documents by a holder who al- 
leges that their production will criminate him. This limitation 
has been frequently applied.^ The risk, however, to which 
the custodian is exposed, must be that of a real, and not that 
of a nominally, penal prosecution.^ Neither a quo warranto' 
nor a mandamus * is a criminal proceeding in the above sense. 

iPost, § 566. Pr. 50; Wigram, Discovery, § 130; 

2 Thomas v. Dunn, 6 Mann. & G. Taylor, Ev. § 1351. 

274, 6 Scott, N. R. 834. 1 Dowl. & See Bradshaw v. Murphy, 7 Car. 

L. 535; Rogers v. Turner, 21 L. J. & P. 612; supra, §§ 120, 463-465. 

Exch. N. S. 9; Wharton, Ev. § 752. As to admissibility in evidence of 

3 Bass V. United States, 20 App. documents or other things taken 
D. C. 232. from accused, see note in 59 L.R.A. 

^Rex. V. Purnell, 1 W. Bl. 37, s. 465. 

c. 1 Wils. 239; Rex v. Heydon. 1 W. ^ Rex v. Cadogan, 5 Barn. & Aid. 

Bl. 351 ; Rex v. Buckingham, 8 902, 1 Dowl. & R. 559, 24 Revised 

Barn. & C. 375, 2 Mann. & R. 412, Rep. 612. 

6 L. J. K. B. 346; Rex v. Cornel- ^ Rex v. Shelley, 3 T. R. 141, 1 

ills, 2 Strange. 1210; s. c. 1 Wils. Revised Rep. 673; Rex v. Purnell, 

142 ; Montague v. Dudman, 2 Ves. 1 W. Bl. 45, 1 Wils. 239. 

Sr. 397; Glynn v. Houston. 1 Keen, ^ Reg. v. Ambergate R. Co. \7 Q. 

329; Byass v. Sullivan, 21 How. B. 957, 16 Jur. 777. 



1 



§§567,568] DOCUMENTS. 1159 

At the same time, inspection may be ordered when the appli- 
cant has reason to beHeve that the document in question was 
forged; and the court, when required by public justice, will 
impound the document for the purposes of a criminal prose- 
cution.^ 

§ 567. Documents may be examined by interpreters 
and experts. — In proper cases, in order to determine as to 
the meaning or genuineness of a writing, the court will author- 
ize an inspection by experts or others having peculiar oppor- 
tunities of identifying or distinguishing the document.^ And 
the same right has been extended to cases where a defend- 
ant desires to obtain an inspection of the remains of a de- 
ceased person in the custody of the police.^ 

§ 568. Evidentiary effect of documentary evidence. — 

The effect of documentary evidence, except where the docu- 
ment is given a particular evidentiary value by statute, is to 
afford general prima facie proof of the fact sought to be es- 
tablished. Thus, a mittimus is prima facie evidence of the 
legality of a commitment to jail ; ^ on a prosecution of a sher- 
iff for an escape, the record of a judgment is only prima facie 
evidence of its recitals, and may be disproved ; ^ where, by 

5 Thomas v. Diimi, 6 Mann. & G. Rep. 663 ; Boyd v. Petrie, L. R. 3 

274, 6 Scott, N. R. 834, 1 Dowl. & Ch. 818, qualifying s. c. L. R. 5 

R. 535 ; Woolmer v. Devereux, 2 Eq. 290. 

Mann. & G. 758, s. c. 3 Scott, N. Stt Atty. Gen.v.WhitzvoodLocal 

R. 224, 9 Dowl. P. C. 672, 10 L. J. Board, 40 L. J. Ch. N. S. 592, 19 

C. P. 207; Richey v. Ellis, Alcock & Week. Rep. 1107. 

N. Ill; Rogers v. Turner, 21 L. J. ^Reg. v. Spry, 3 Cox, C. C. 221. 

Exch. N. S. 9; Boyd v. Petrie, L. See supra, § 312. 

R. 3 Ch. 818, overruling s. c. L. R. i State v. Malloy, 54 Vt. 96. 

5 Eq. 290. 2 Griffin v. State. 37 Ark. 437. 

^ Swansea Vale R. Co. v. Btidd, See People v. Rodawald, \77 N. 

L. R. 2 Eq. 274, 35 L. J. Ch. N. S. Y. 408, 70 N. E. 1. 
631, 12 Jur. N. S. 561, 14 Week. 



1160 EVIDENCE IN CRIMINAL CASES. [CHAP. XI. 

statute, a copy of the result of an election is made prima facie 
evidence, it is also evidence that the canvass was held at the 
time prescribed by law; ^ a printed copy of an ordinance pub- 
lished by authority is prima facie evidence of its legal exist- 
ence and contents, to the extent that the burden is on the ac- 
cused to overcome the showing.* The record of a court of 
general jurisdiction imports absolute verity.^ 

§ 569. Supplementing documents with parol testi- 
mony. — The introduction of documentary evidence is not 
exclusive of parol testimony tending to establish the same 
fact. Thus, on the trial of an indictment, parol testimony 
of a magistrate and his clerk was admissible to show that 
depositions were taken in accordance with the statute requiring 
witnesses to be examined in the presence of the accused, and to 
show that it had been read over to the witness, corrected by 
him, and subscribed and attested by the officer ; ^ on a prose- 
cution for resisting arrest on the part of an accused allowed 
to go at large, on certain conditions, it was proper to intro- 
duce parol evidence of the promise, although it was not con- 
tained in the record of conviction ; ^ where deceased made an 
affidavit which was sought to be used as a dying declaration, 
but excluded, parol evidence of the dying declaration was 
admissible;^ where answers of accused to certain questions 
were entered on the record, such record did not preclude pa- 
rol testimony of the facts stated ; * documentary evidence does 

^ Brass v. State, 45 Fla. 1, 34 ^ Corporate Authorities of Scotts- 

So. 307. bora v. Johnston, 121 Ala. 397, 25 

^Heno V. Fayctteville, 90 Ark So. 809. 

292, 119 S. W. 287. ^ State v. Viaux, 8 La. Ann. 514: 

estate V. Shaw, 7Z Vt. 149, 50 Allen v. Com. 134 Ky. 110, 119 S. 

Atl. 863, 13 Am. Crim. Rep. 51. W. 795, 20 A. & E. Ann. Cas. 884. 

See Pryor v. Com. 2 Va. Dec. *Com. v. Walker, 163 Mass. 226. 

479, 26 S. E. 864. 39 N. E. 1014 ; State v. Young, 105 

^ State V. Depoister, 21 Nev. 107, Mo. 634, 16 S. W. 408; Hawser v. 

25 Pac. 1000. Com. 51 Pa. 332. 



569] 



DOCUMENTS. 



1161 



not exclude parol testimony of the same fact, where the wit- 
ness testifying has knowledge of the fact, nor in those cases 
where it is necessary to explain the meaning and contents 
of the document.^ While parol testimony may be used to 
supplement documentary evidence, or to correct and show 
what the document actually contained, it cannot be used to 
show statements not contained in such document, or contra- 
dicting the document.^ Evidence of the real names of the 



^Kearney v. State, 101 Ga. 803, 
65 Am. St. Rep. 344, 29 S. E. 127 ; 
Douglass v. State, 18 Ind. App. 289, 
48 N. E. 9; Woodruff v. State, 61 
Ark. 157, 32 S. W. 102; Com. v. 
Warner, 173 Mass. 541, 54 N. E. 
353; Kelley v. State, 43 Tex. Crim. 
Rep. 40, 62 S. W. 915. 

See Earl v. State, 44 Tex. Crim. 
Rep. 493, 72 S. W. 376; State v. 
White, 70 Vt. 225, 39 Atl. 1085; 
State V. Marsh, 70 Vt. 288, 40 Atl. 
836; State ex rel. Mundt v. Meier, 
140 Iowa, 540, 118 N. W. 792. 

See People v. Andre, 157 Mich. 
362, 122 N. W. 98; State v. Ger- 
main, 54 Or. 395, 103 Pac. 521. 

See Roselle v. Com. 110 Va. 235, 
65 S. E. 526; State v. Pagan, — 
Del. — , 74 Atl. 692; State v. Em- 
blcn, 66 W. Va. 360, 66 S. E. 499: 
Thompson v. State, 120 Ga. 132, 47 
S. E. 566. 

See People v. Walker, 178 N. Y. 
563, 70 N. E. 1105; State v. Franks, 
51 S. C. 259, 28 S. E. 908; Garrett 
V. State, 42 Tex. Crim. Rep. 521, 61 
S. W. 129: Matkins v. State, -- 
Tex. Crim."Rep. — , 62 S. W. 911; 
Stephens v. State, 49 Tex. Crim. 
Rep. 489, 93 S. W. 545. 

See State v. Vest, 21 W. Va. 796; 
State V. Simien, 30 La. Ann. 296, 



Dunlap V. State, 9 Tex. App. 179, 
35 Am. Rep. 736 ; State v. Hall, 49 
Me. 412; Lamb v. State, 66 Md. 
285, 7 Atl. 399; State v. Hall, 79 
Me. 501, 11 Atl. 181; State v. Lin- 
thicum, 68 Mo. 66; State v. Devlin. 
7 Mo. App. 32; State v. Hockaday, 
98 Mo. 590, 12 S. W. 246; Jones v 
State, 35 Tex. Crim. Rep. 565, 34 
S. W. 631 ; Harrison v. State, 15 
Lea, 720; State v. Daggett, 2 Aik. 
(Vt.) 148; Griffith v. State, 37 Ark. 
324. 

^ Irving v. State, 9 Tex. App. 66 ; 
State V. Branham, 13 S. C. 389; 
O'Connell v. State, 10 Tex. App. 
567; Matthews v. State, 96 Ala. 62, 
11 So. 203; Oliver v. State, 94 Ga. 
83, 21 S. E. 125 ; Peoples v. State, 
— Miss — , 33 So. 289; Kneeland v. 
State, 63 Ga. 641; State v. McAl- 
pin, 26 N. C. (4 Ired. L. ) 140. 

See Valentine v. State, 6 Tex. 
App. 439; Clough v. State, 7 Neb. 
320; State v. Allen, 1 Ala. 442; 
State V. Little, 42 Iowa, 51 ; State 
V. Miller, 95 Iowa, 368, 64 N. W. 
288; Com. v. Lane, 151 Mass. 356, 
24 N. E. 48; Com. v. O'Brien, 152 
Mass. 495. 25 N. E. 834; People v. 
Restell, 3 Hill, 289; People v. 
Pozvers, 7 Barb. 462; Eastman v. 
Waterman, 26 Vt. 494. 



1162 EVIDENCE IN CRIMINAL CASES. [CHAP. XI. 

parties may be given in the prosecution for adultery, even 
though it contradicts the marriage certificate, the officiating 
clergyman not being required to guarantee that the persons 
were married to each other under their true names ; "^ and where 
a document has been altered, parol testimony is admissible 
to show that the alteration was improper, but not to falsify 
the document by showing that the alteration whereby a docu- 
ment was corrected was improperly made.' 

7 People V. Stokes, 71 Cal. 263, 12 « Shirmer v. People, ZZ 111. 276. 

Pac. 71, 8 Am. Crim. Rep. 14; God- 
dard v. State, 78 Ark. 226, 95 S. W. 
476; Re Welty, 123 Fed. 122. 



CHAPTER XII. 

JUDGMENTS AND JUDICIAL RECORDS. 

I. Binding Effect of Judgments. 

§ 570. Evidentiary character of judgments; general considerations. 

570a. Double aspects of criminal offenses ; acquittal as a bar. 

570b. Double aspects of criminal offenses continued ; acquittal when not 
a bar. 

570c. When judgment in criminal action is the basis of the civil suit. 

570d. Evidentiary effect of criminal judgment in civil action. 

571. Jurisdiction and regularity of proceedings prerequisite to admis- 

sibility of judgment. 

572. Discharge on preliminary proceedings not conclusive. 

573. Discharge on nolle prosequi is not a bar. 

574. Verdict of acquittal operates as a bar. 

575. Criminal prosecution not barred by pendency of civil action; miti- 

gation. 

576. Judgments of military, consular, and miners' courts. 
la. Jeopardy. 

§ 576a. Jurisdiction of court. 

577. Conclusiveness of a judgment on a plea of nolo contendere. 

578. Identity of offenses as constituting a bar. 

579. Acquittal on a defective indictment is no bar ; exception. 

580. Conviction on one criminal aspect of an offense is a bar to con- 

viction on the other. 

581. Successive prosecutions under liquor laws. 

582. Acquittal on plea in abatement. 
582a. On plea of guilty. 

582b. Discharge of jury without verdict. 

582c. Acquittal on one of several counts of the indictment 

583. Acquittal by reason of variance no bar. 
583a. Definition. 

583b. Essentials to sustain the plea. 

583c. In homicide ; general rule. 

583d. In homicide ; conclusiveness of acquittal or conviction on reversal 

of judgment. 
583e. Inclusion of degrees in homicide. 

1163 



1164 EVIDENCE IN CRIMINAL CASES. [CHAP. XII. 

§ 584. Acquittal of the minor offense as a bar to a subsequent indictment. 

585. When acquittal of the minor does not bar prosecution for the 

major offense. 

586. Conviction on the major as a bar to prosecution on the minor 

offense. 

587. Where two are simultaneously killed, a prosecution for killing one 

does not bar a prosecution for killing the other. 
587a. Offenses against different sovereigns, arising out of the same 
act. 

588. Prosecution for stealing from A does not bar prosecution for 

stealing from B by the same act; exception. 

589. Offenses continuing through periods of time. 

590. On trial for battery, prosecution for prior simultaneous battery of 

another is a bar. 

591. Judgment on successive offenses. 

592. Question, how raised. 

593. Parol evidence admissible to prove identity. 

II. When Judgment may be Impeached. 

§ 594. Collateral impeachment of judgment. 

595. Impeachment of judgment for fraud. 

596. Impeachment of judgment for want of jurisdiction. 
596a. When a conviction of crime may be impeached. 

III. Administration and Probate. 

g 597. Letters of administration as prima facie proof of facts. 

598. Probate of will as prima facie proof. 

599. Inquisition of lunacy prima facie proof. 

IV. Judgments in Rem. 

§ 600. Effect of judgments in rem in criminal cases. 

V. Judgments Viewed Evidentially. 

§ 601. Judgments as evidence of prior conviction. 

602. Judgment of conviction of principal evidence against accessory. 
602a. Judgments as evidence to establish facts. 

603. To prove judgment, record must be complete. 

604. Journals of court admissible to prove actions of court. 

605. Dockets entries not admissible when full record can be had. 

606. When ancient documents may be proved in fragments. 

607. When portions of a record may be admitted as evidence. 

608. Portions of records must be complete in themselves. 

609. When verdict is admissible as an evidentiary fact. 

610. When portions of ancient records may be received in evidence. 

611. Return of officer as evidence of facts. 

612. Return of execution as evidence of insolvenc}'. 



§ 570J JUDGMENTS AND JUDICIAL RECORDS. 1165 

VI. Records of Admissions. 

§ 613. Judgment as evidence of an admission or confession. 

614. Conclusive effect of an officer's return on a writ. 

615. Pleadings filed in civil actions as evidence of admission; excep- 

tion. 

616. Admission by demurrer. 

617. Binding effect of official certificates. 

I. Binding Effect of Judgments. 

§ 570. Evidentiary character of judgments ; general con- 
siderations. — Upon the maxims of the law, that no man 
shall be twice vexed for the same cause, and that it is for 
the public interest that there shall be an end to litigation,^ 
a judgment in a civil proceeding is generally held conclusive 
of all facts determined thereby, and that could have been 
properly determined in the proceeding on which the judg- 
ment is based. It is essential, however, to the binding effect 
of such judgment, that it should be entered by a court having 
jurisdiction both of the parties and the subject-matter of the 
action; that the concluded parties should have a direct inter- 
est in the subject-matter of the action, with the right and the 
opportunity to exercise that right in presenting their defense; 
with the right to be heard by themselves and their witnesses ; 
with the right to cross-examine opposing witnesses, and to 
have such control of the action that, as injured or aggrieved 
parties, they could appeal from any judgment rendered against 
them. 

A judgment in a criminal proceeding has a different object, 
and hence a different result, arising through a different pro- 
cedure from that upon which the judgment in the civil pro- 
ceeding is based. 

1 Wisconsin v. Torinus, 28 Minn. Case (De Grey, L. CIi. J.) 20 How. 

175, 9 N. W. 725; Faircs v. McLel- St. Tr. 355, 11 Harg. St. Tr. 261, 

Ian, — Tex. Civ. App. — , 24 S. W. Hardw. 474, 2 Smith, Lead. Cas. 

365; Smith v. Auld, 31 Kan. 262, 1 735. 
Pac. 626; Duchess of Kingston's 



1166 EVIDENCE IN CRIMINAL CASES. [CHAP. XII. 

In the civil proceeding the judgment is based upon a pre- 
ponderance of evidence, but in a criminal proceeding the fact 
of guilt must be established beyond a reasonable doubt; in 
the civil proceeding the parties attend by accord, while in the 
criminal proceeding the accused attends by compulsion; in 
the civil proceeding there is no presumption as to either party, 
while in the criminal proceeding the presumption of innocence 
attends the accused throughout the trial, and has relation to 
every fact that must be established in order to prove his guilt 
beyond a reasonable doubt ; in the civil proceeding the act com- 
plained of is the essential element, while in the criminal pro- 
ceeding the intent with which the act was committed is the 
essential element. 

These material differences are considered as valid and sub- 
sisting reasons for the rule that a judgment in a criminal 
proceeding cannot be given in evidence in a civil action, to 
establish the truth of the facts upon which it is rendered.^ 
However, it must be noted that these differences are prelim- 
inary matters. When a judgment is finally entered, either in 
a civil or criminal proceeding, it is on the assumption that the 
preliminary matters have all been established according to 
the degree of proof required in either proceeding, so that the 
judgment in the civil proceeding and the judgment in the 
criminal proceeding, per se, must be accorded the same con- 
clusive and binding character before the law. As between the 
parties and their privies in all issues, and as against all per- 
sons, the judgment is admissible to prove the fact of its rendi- 
tion.^ 

^United States v. Schneider, 35 Albrccht v. State. 62 Miss. 516; 

Fed. 107; State v. Adams, 72 Vt. Doyle v. Gore, 15 Mont. 212. 38 

253, 82 Am. St. Rep. 937, 47 Atl. Pac. 939; Wilson v. Manhattan R. 

779; Wharton, Ev. § 777; Black, Co. 2 Misc. 127, 20 N. Y. Supp. 852, 

Judgm. § 529. affirmed in 144 N. Y. 632, 39 N. R 

3 1 Starkie, Ev. 278; Black, 495. 
Judgm. § 529; Greenl. Ev. § 537; 



§ 570a] JUDGMENTS AND JUDICIAL RECORDS. 1167 

But these material differences become of a substantive and 
controlling character when a judgment in a civil proceeding 
is offered as evidence of a fact in a pending criminal proceed- 
ing, or where a judgment in a criminal proceeding is offered 
to establish a fact in a pending civil proceeding. In such case, 
judgments are only prima facie evidence of the facts, which 
the opposing party is entitled to controvert.* 

It is therefore the purpose of this chapter to define the re- 
lations and their exceptions witli reference to the evidential 
character of judgments. 

§ 570a. Double aspects of criminal offenses; acquittal 
as a bar. — It is obvious that all criminal offenses have two 
aspects. First, there is the violation of a public law, injurious 
to the general welfare of the state, which must be punished 
by a state prosecution for the crime ; second, there is the tres- 
pass against the personal rights of the individual, and the law 
gives him his remedy against the accused by way of damages. 

This does not give to the judgment rendered at the instance 
of the state prosecution, nor that entered through the asser- 
tion of the plaintiff's remedy against the accused, a double as- 
pect. The judgment is single, but the offense possesses the 
double aspect. 

Hence, where the offense has but a single aspect, as in the 
case of a wrong suffered by the public generally, and not aris- 
ing out of a violation of private rights, the final judgment 
rendered, as a result of the state prosecution, is conclusive 
of that particular charge.^ Thus, a judgment of acquittal in 
a criminal prosecution for obstructing a navigable stream is 

* Maybee v. Avery, 18 Johns. 352; ^Leavenworth v. Tomlinson, 1 

Meade v. Boston, 3 Cush. 404; Root, 436. 

Johnson v. Gordwood, 7 Misc. 651, See Coffey v. United States, 116 

28 N. Y. Supp. 151, 143 N. Y. 660, U. S. 4.16, 29 L. ed. 684, 6 Sup. Ct. 

39 N. E. 21 ; Thompson v. Whit- Rep. 437. 
man. 18 Wall. 469, 21 L. ed. 901. 



1168 EVIDENCE IN CRIMINAL CASES, [CHAP. XII. 

a bar to a suit brought by the same authority against the ac- 
cused to compel a removal of the obstruction;^ an acquittal 
in a criminal prosecution for transporting falsely labeled pack- 
ages is a bar to an action by the same authority to forfeit the 
property and recover a penalty for the violation of the act;' 
a judgment of not guilty, entered on a criminal prosecution 
for maintaining a nuisance by maintaining a dam without a 
fishway, is a bar to a suit by the prosecuting authorities to 
abate the nuisance, where a part of the penalty imposed would 
have been its abatement on conviction ; * a verdict acquitting 
of murder, because of insanity, is res judicata between the peo- 
ple and the accused on the question of insanity at the time, 
that he did not know the nature of the act, and that he did 
not know it was wrong; ^ and where the accused has been con- 
victed of arson, he may plead that judgment in bar to an in- 
dictment for murder committed in the same burning, by the 
burning to death of a person in the building.^ 

As a general rule the judgment in a criminal proceeding 
is conclusive in a civil proceeding where the parties and the 
subject-matter are the same.' 

2 United States v. Donaldson- Anderson, 4 Me. 100, 16 Am. Dec. 
Shtilz Co. 142 Fed. 300 (see 148 237 (judgment for divorce on the 
Fed. 581). ground of adultery, sufficient proof 

3 United Stales v. Seattle Brew- of marriage). See Randoli v. 
ing 6- Malting Co. 135 Fed. 597. Randall, 4 Me. 326. 

See United States v. Rosenthal, ''Coffey v. United States, 116 U. 

98 C. C. A. 406, 174 Fed. 652. S. 436, 29 L. ed. 684, 6 Sup. Ct. Rep. 

^ State ex rel. Remley v. Meek, 437; United States v. Lot of Pre- 

112 Iowa. 338, 51 L.R.A. 414, 84 cious Stones, 68C. C. A. 1, 134 Fed. 

Am. St. Rep. 342, 84 N. W. 3. 63 ; State v. Cobb, 123 Iowa, 628, 

5 People V. Lamb, 118 N. Y. Supp. 99 N. W. 300; People v. Albers, 137 

389. Mich. 685, 100 N. W. 910. 

^ State V. Cooper, 13 N. J. L. See 103 Am. St. Rep. 21, 26, note; 

361, 25 Am. Dec. 490. The Good Templar. 97 Fed. 653; 

S&e: Hole omb V. Cornish,^ Conn. Cooper v. Com. 106 Ky. 911, 45 

375 ; Boyle v. Boyle, 3 Mod. 164 L.R.A. 216, 90 Am. St. Rep. 276, 51 

(conviction of bigamy concUisive S. W. 790, 59 S. W. 524, 11 Am. 

proof of marriage); Anderson v. Crim. Rep. 625; State ex rel. 



§ 570!)] JUDGMENTS AND JUDICIAL RECORDS. 1169 

§ 570b. Double aspects of criminal offenses continued; 
acquittal, when not a bar. — Where the offense has a double 
aspect, as in the case of a wrong not only to the pubHc gen- 
erally, but to the rights of an individual as well, and also not 
only committed in one jurisdiction, but in another as well, 
the acquittal of one aspect of the offense is not as a general 
rule a bar to a prosecution on the other aspect of the offense ; * 
nor, as will presently be seen, does a civil suit in the name 
of the party injured bar a subsequent prosecution by the sov- 
ereign.^ Nor is the fact that an issue was determined in an- 
other trial between the defendant and a private suitor, or be- 
tween the sovereign and another defendant, conclusive as to 
persons not parties to such issue. Thus, when parties are im- 
dicted for procuring a fraudulent divorce, the prosecution may 
go behind the record, and inquire into the merits ; ^ and on an 
indictment for conspiring falsely to accuse an innocent man of 
crime, the prosecution can go behind the record of convic- 
tion, and show that the conviction was the result of fraud.* 
It is true that in a case decided in 1880, in Massachusetts, it 
was held that an indictment for obtaining money by false pre- 
tenses will not lie for receiving money upon a judgment ob- 
tained upon a false representation and false evidence of an 
injury.^ "To hold that the statute," said Colt, J., "which 
punishes criminally the obtaining of property by false pre- 
tenses, extends to the case of a payment made by a judgment 
debtor in satisfaction of a judgment, when the evidence only 
shows that the false pretenses were used to obtain a judgment 

Wright v. Savage, 64 Neb. 700, 90 3 See Wharton, Crim. Law, 8th 

N. W. 901, 91 N. W. 557; Burt v. ed. § 1362. 

Union Cent. L. Ins. Co. 59 L.R.A. * Com. v. McLean, 2 Pars. Se!. 

393, 44 C. C. A. 548, 105 Fed. 424. Eq. Cas. 367. 

1 See Wharton, Crim. PI. & Pr. ^ Com. v. Harkins, 128 Mass. 79, 

§§ 441. 442. Gray, Ch. J., Soule, J., and Ames, 

*Post, § 575. J., dissent. 
Crim. Ev. Vol. II.— 74. 



1170 



EVIDENCE IN CRIMINAL CASES. [CHAP. XII. 



as one step towards obtaining the money, would practically 
make all civil actions for the recovery of damages liable in 
such cases to revision in the criminal court, and subject the 
judgment creditor or prosecution generally for collecting a 
valid judgment, whether the same was paid in money or satis- 
fied by a levy on property." But it is as much an indictable 
offense to cheat by fraudulently obtaining a judgment as it is 
to cheat by obtaining a bond. It is true, it may be well argued, 
that a party to such a judgment must apply to the court en- 
tering it to have it opened, and until this is done he cannot 
resort to criminal proceedings against his adversary. But the 
commonwealth of Massachusetts in the case before us was not 
a party to the judgment alleged to have been fraudulent, and 
could not have been heard on a motion to open it. 

But this decision cannot be regarded as in an}^ way impair- 
ing the well-established rule that a judgment rendered in a 
criminal action, when offered to establish the facts upon which 
it was rendered, is not admissible as evidence of such facts. 
The decisions are in harmony with the general rule as il- 
lustrated by the case law in all of the jurisdictions.® 



^Bly V. United States, 4 Dill. 
464, Fed. Cas. No. 1,581, and Stone 
V. United States, 167 U. S. 178, 
42 L. ed. 127, 17 Sup. Ct. Rep. 
778 (criminal prosecution for cut- 
ting timber on public land, no bar 
to a suit to recover the value of 
the timber) ; Rosenbtirg v. Sal- 
vatore, 16 N. Y. S. R. 801, 1 N. Y. 
Supp. 326, and Towle v. Blake, 48 
N. H. 92 (prosecution for assault 
and battery, no bar to action for 
damages) ; People ex rel. McGrath 
V. Excise Comrs. 64 Hun, 634, 46 
N. Y. S. R. 167, 18 N. Y. Supp. 
884 (quashing indictment for not 
keeping an inn closed on Sunday 
does not bar proceeding to revoke 



license for same offense) ; Jolinson 
V. Girdivood, 143 N. Y. 660, 39 N. 
E. 21 (wrongful conviction of a 
crime does not bar civil action 
against party maliciously procuring 
the conviction) ; Wilkes v. Dins- 
man, 7 How. 89, 12 L. ed. 618 
(judgment of acquittal of assault 
and battery and false imprison- 
ment not admissible as evidence in 
civil suit for damages for the same 
acts) ; United States v. Jaedicke, Ti 
Fed. 100 (the acquittal of an of- 
ficial on indictment for an offense 
does not bar action on his official 
bond for amount due the govern- 
ment on adjust lent of his ac- 
counts) ; Cottinghavt v. Weeks, 54 



§ 570b] JUDGMENTS AND JUDICIAL RECORDS. 



1171 



Even where a judgment is entered in a criminal prosecution 
on a plea of guilty, such judgment is not conclusive of the 
truth of the criminal charge when used in a civil case/ and 



Ga. 275 (acquittal of homicide is 
not evidence in civil suit to re- 
cover damages brought by widow 
for the death of her husband) ; 
Van Hoffman v. Kendall, 63 Hun, 
628, 44 N. Y. S. R. 484, 17 N. Y. 
Supp. 713, and Tunilin v. Parrot, 
82 Ga. 732, 9 S. E. 718 (acquittal 
of charge of malicious mischief, no 
bar to an action for damages for 
the same loss). See BeausoUcl v. 
Brown, 15 La. Ann. 543, and Re 
Smith, 10 Wend. 449, and Re 
Campbell, 197 Pa. 581, 47 Atl. 860 
(acquittal of physician on charge 
of violating medical practice act 
does not bar proceedings to de- 
prive him of his license founded 
on same charge) ; Rohm v. Bor- 
land, 4 Sadler (Pa.) 319, 7 Atl. 
171 (acquittal of charge of know- 
ingly receiving stolen goods does 
not bar action for possession) ; 
Dyer County v. Chesapeake, S. & 
S. IV. R. Co. 87 Tenn. 712, 11 S. 
W. 943 (acquittal of railway com- 
pany on indictment for failing to 
repair bridge, no bar to a suit 
requiring the company to maintain 
the bridge and to repay the county 
the expense of rebuilding it). 

The general rule is further illus- 
trated by the following cases : Sea- 
board Air Line R. Co. v. O'Quin, 
124 Ga. 357, 2 L.R.A.(N.S.) 472, 
52 S. E. 427; Powell v. Wiley, 125 
Ga. 823, 54 S. E. 732; Small v. 
Harrington, 10 Idaho, 499, 79 Pac. 
461; McDonald v. Stark, 176 111. 
456, 52 N. E. 37; Miles v. Craig, 



6 La. Ann. 753 ; Sutfin v. People, 
43 Mich. 37, 4 N. W. 509; Barnett 
V. Farmers' Miit. F. Ins. Co. 115 
Mich. 247, 73 N. W. 372; State v. 
Corron, 73 N. H. 434, 62 Atl. 1044, 
6 A. & E. Ann. Gas. 486; Canton 
V. McDaniel, 188 Mo. 207, 86 S. 
W. 1092 ; People v. Snyder, 90 App. 
Div. 422, 86 N. Y. Supp. 415; 
FriersoH v. Jenkins, 72 S. C. 341, 
110 Am. St. Rep. 608, 51 S. E. 
862, 5 A. & E. Ann. Gas. 77; 
Chamberlain v. Pierson, 31 G. C. 
A. 157, 59 U. S. App. 55, 87 Fed. 
420; Halliday v. Smith, 67 Ark. 
310, 54 S. W. 970; State v. Brad- 
nack, 69 Gonn. 212, 43 L.R.A. 620, 
37 Atl. 492; Micks v. Mason, 145 
Mich. 212, 11 L.R.A.(N.S.) 653, 
108 N. W. 707, 9 A. & E. Ann. Gas. 
291 ; Vadncy v. Albany R. Co. 47 
App. Div. 207, 62 N. Y. Supp. 140 ; 
Dunagain v. State, 38 Tex. Grim. 
Rep. 614, 44 S. W. 148. See State v. 
Adams, 72 Vt. 253, 82 Am. St. Rep. 
937, 47 Atl. 779 ; Boyd v. Alabama, 
94 U. S. 645, 24 L. ed. 302; Com. 
V. M'Pike, 3 Gush. 181, 50 Am. Dec. 
727 ; State v. Lawson, 123 N. G. 
740, 68 Am. St. Rep. 844, 31 S. E. 
667; Corbley v. Wilson, 71 111. 209, 
22 Am. Rep. 98; People v. Kenyan. 
93 Mich. 19, 52 N. W. 1033 (as- 
sault and battery) ; State v. Hog- 
ard, 12 Minn. 293, Gil. 191; Com. 
V. Hurd, \77 Pa. 481, 35 Atl. 682. 
' Crawford v. Bergen, 91 Iowa, 
675, 60 N. W. 205; Clark v. Irvin, 
9 Ohio, 131. 



1172 EVIDENCE IN CRIMINAL CASES. [CHAP. XII. 

the defendant,, upon the trial of the civil action, may show that 
he was not guilty of any offense,® although judgment on a 
plea of guilty may be put in evidence against the party enter- 
ing it, in any subsequent proceedings to which it may be rele- 
vant.* 

§ 570c. When judgment in criminal action is the basis 
of the civil suit.— When the judgment in a criminal action 
is the basis of the civil suit, under the double aspect of the 
offense, there necessarily arises an exception to the general 
rule just discussed, that judgments in criminal cases are not 
evidence in civil actions. Thus, an accused was convicted of 
keeping a gambling house in violation of the law, and con- 
demned to pay a fine to a charity hospital. In a contest be- 
tween the hospital and the parish, as to which was entitled 
to the fine, the judgment of conviction was evidence of that 
fact ; ^ where suit was brought to recover the reward offered 
for conviction of accused, the judgment was evidence of iden- 
tity;^ again, where plaintiffs sought to recover, as heirs, upon 
a policy issued to the ancestor, who was convicted and exe- 
cuted for a crime, the court gave conclusive evidentiary char- 
acter to the judgment of conviction, because the criminal judg- 
ment was the foundation of the suit, although the complaint 
alleged that the insured was in fact innocent of the crime ; and. 
on appeal the judgment of the lower court was upheld, upon 
the ground that the civil action was necessarily founded upon 
the judgment in the criminal action, and could not be main- 

8 See note 7 above; Adams v. H. 546. See Consolidated Ice Co. 

Sigman, 89 Miss. 844, 43 So. 877. v. Mcdford, 18 Pa. Dist. R. 293. 
But see People v. Goldstein, 32 Cal. i Orleans Parish v. Morgan, 6 

432. Mart. N. S. 3. 

^Rcg. V. Fontaine Moreau, 11 Q. ^'York v. Forscht, 23 Pa. 391; 

B. 1035, 17 L. J. Q. B. N. S. 187, Mead v. Boston, 3 Cnsh. 404. See 

12 Jur. 626; Bradley v. Bradley, Roberts v. State, 160 N. Y. 217, 54 

11 Me. 367; Green v. Bedell, 48 N. N. E. 678, 15 Am. Crim. Rep. 561. 



§ 570d] JUDGMENTS AND JUDICIAL RECORDS. 1173 

tained except as the result of the criminal action.' A further 
exception to the rule that the judgment in a criminal prosecu- 
tion is not admissible to establish the truth of the facts on 
which it was rendered arises where a judgment in a criminal 
action is introduced in a civil action as an admission or con- 
fession.* 

A further exception to the general rule is found in actions 
for malicious prosecution. Such actions are generally brought 
as the result of the judgment in the criminal case. Here a 
judgment of acquittal is generally conclusive of a want of 
probable cause, while a judgment of conviction conclusively 
establishes the existence of a probable cause. Hence, the judg- 
ment in the criminal action is binding upon the substantive 
issues in the civil action.^ 

§ 570d. Evidentiary effect of criminal judgment in civil 
action. — A criminal judgment is admissible in a civil 
action, as we have seen, to prove the fact of its rendition, but 
such judgment is merely prima facie evidence, and never con- 
clusive; nor does it estop the respective parties from contro- 
verting the fact of guilt or innocence.^ It is a general rule of 

3 Burt V. Union Cent. L. Ins. Co. Mass. 243; Womack v. Circle, 29 
59 L.R.A. 393, 44 C. C. A. 548, 105 Gratt. 192; Goodrich v. Warner, 21 
Fed. 419, 187 U. S. 362, 47 L. ed. Conn. 432; Bailey v. Warden, 4 
216, 23 Sup. Ct. Rep. 139. Maule & S. 400, 16 Revised Rep. 

4 Post, §613. 502; Skidmore v. Bricker, 77 111. 
^Fisher v. Bristow, 1 Doiigl. K. 164; White v. Rey, 8 Pick. 467. 

B. 215; Herman v. Brookerhoff, 8 ^ Sims v. Sims, 75 N. Y. 471 

Watts, 240; Whitney v. Peckham, (judgment of foreign court not 

15 Mass. 243; Griffis v. Sellars, 19 conclusive of fact of guilt); ^lay- 

N. C. (2 Dev. & B. L.) 492, 31 Am. bee v. Avery, 18 Johns. 352 (in 

Dec. 422; Parker v. Farley, 10 action for slander charging that 

Cush. 279; Dennehey v. Woodsum, the plaintiff was a thief, the record 

100 Mass. 197; Parker v. Hunting- of plaintiff's conviction for steal- 

ton, 7 Gray, 36, 66 Am. Dec. 455 ; ing is not conclusive of guilt, but 

Cloon V. Gerry, 13 Gray, 203, fol- may be controverted) ; Mead V. 

lowing Whitney v. Peckham, 15 Boston, 3 Cush. 404 (record of 



1174 



EVIDENCE IN CRIMINAL CASES. [CHAP. XII. 



law that where a conviction is secured on the testimony of a 
party who afterwards seeks to use such conviction as evidence 
in another action, it is inadmissible generally on the ground 
that a party is not allowed to make evidence for himself, but 
more particularly upon the ground of want of mutuality in 
the parties.^ 



conviction not conclusive of arson ; 
Johnson v. Gordwood, 7 Misc. 651, 
28 N. Y. Supp. 151, 143 N. Y. 660, 
39 N. E. 21 (in an action for 
damages for false arrest, judgment 
of conviction not conclusive of 
plaintiff's guilt) ; Justice v. Gos- 
ling, 12 C. B. 39, 21 L. J. C. P. 
N. S. 94, 16 Jur. 429 (judgment of 
conviction not conclusive in tort 
action) ; Thompson v. Whitman, 

18 Wall. 469, 21 L. ed. 901 (in an 
action against a sheriff in trespass, 
for seizing a vessel, the record of 
conviction of the owner of vio- 
lating the law, by which the vessel 
became forfeit, is not conclusive 
of the facts stated). See Castrique 
V. Imrie, L. R. 4 H. L. 414, 39 L. J. 
C. P. N. S. 350, 23 L. T. N. S. 48, 

19 Week. Rep. 1, 5 Eng. Rul. Cas. 
899; Roberts v. State, 160 N. Y. 
217, 54 N. E. 678, 15 Am. Crim. 
Rep. 561 (conviction of guilt con- 
clusive, under statute allowing com- 
pensation only in case imprison- 
ment is unjustifiable) ; Sibley v. 
St. Paul F. & M. Ins. Co. 9 Biss, 
31, Fed. Cas. No. 12, 830 (acquittal, 
on charge of arson, not conclusive 
as to guilt, in action brought to re- 
cover on policy of insurance) ; 
Alexander v. Gallozvay, Abb. Adm. 
261, Fed. Cas. No. 167 (acquittal 
of theft not conclusive in action 
brought for wages, in which the 



larceny is set up as an act involving 
forfeiture) ; Mathison v. Daily, 2 
Haw. 702 (technical acquittal not 
conclusive). See Helsham v. Black- 
wood, 11 C. B. Ill, 20 L. J. C. P. 
N. S. 187, IS Jur. 861; Moses v. 
Bradley, 3 Whart. 272 (probative 
force in action for damages for 
assault) ; Porter v. Seiler, 23 Pa. 
424, 62 Am. Dec. 341 (evidence of 
assault and battery where offered 
by defendant, and not objected to) ; 
Smith V. Brown, 2 IMich. 161 
(conviction inadmissible to dis- 
credit witness in chancery action. 
But see Gardner v. Bartholomezv, 
40 Barb. 325, and Sims v. Sims, 75 
N. Y. 474). 

2 2 Phillipps, Ev. 4th Am. ed. 
443; Reg. v. Fontaine Moreau 
11 Q. B. 1033, 17 L. J. Q. B. N. S. 
187, 12 Jur. 626; Gibson v. M'Carty 
Cas. t. Hardw. 311; Lewis v. Pctay- 
z'in, 4 ]\Iart. N. S. 5; Robinson v. 
Wilson, 22 Vt. 35, 52 Am. Dec. 77 ; 
Smith V. Rummens, 1 Campb. 9; 
Hathaway v. Barrow, 1 Campb. 151. 
See Blakcmore v. Glamorganshire 
Canal Co. 2 Cromp. M. & R. 139, 1 
Gale, 78, 5 Tyrw. 603 ; Burdon v. 
Brozvning, 1 Taunt. 522; Bartlett 
V. Pickersgill, 4 East, 577, note, 1 
Eden, 515, 1 Cox. Ch. Cas. 5, 1 
Revised Rep. 1 ; Woodruff v. Wood- 
ruff, 11 Me. 475; Quinn v. Qiiinn, 
16 Vt. 426; Maybee v. Avery, 18 



§ 571] 



JUDGMENTS AND JUDICIAL RECORDS. 



1175 



§ 571. Jurisdiction and regularity of proceedings pre- 
requisite to admissibility of judgment. — To enable the pro- 
ceedings in a prior prosecution to bar a subsequent prosecu- 
tion, it is necessary that in the prior prosecution the court 
should have had jurisdiction of the offense, and the proceed- 
ings should be regular.^ When two courts have concurrent 
jurisdiction of an entire and undivisible crime, the court first 
assuming such jurisdiction over a particular person or thing 
acquires exclusive control, and its judgments are a bar to sub- 
sequent proceedings in the ancillary tribunal.^ 

There must be the prosecution of the person ^ and of the 
subject-matter,* for, where either is lacking, the judgment ren- 
dered cannot be used as evidence as a bar to further litiga- 
tion.^ 



Johns, 352; Bennett v. Fiilner, 49 
Pa. 155. 

1 Post, § 594 ; Archbold, Crim. 
PL 92 ; 1 Leach, C. L. 135 ; 2 Hawk. 
P. C. chap. 35 ; Rex v. Bowman, 6 
Car. & P. ZZ7 ; Stevens v. Fassett, 
27 Me. 266; Marston v. Jenness, 11 
N. H. 156; State v. Hodgkins, 42 N. 
H. 475 ; Com. v. Alderman, 4 Mass. 
477 ; Com. v. Cunningham, 13 Mass. 
245; Com. v. Peters, 12 Met. 387; 
Com V. BoswortJi, 113 Mass. 200, 
18 Am. Rep. 467; State v. Brown, 
16 Conn. 54; State v. Cooper, 13 
N. J. L. 361, 25 Am. Dec. 490; 
Com. V. Myers, 1 Va. Cas. 188; 
Bailey's Case, 1 Va. Cas. 258; 
Wort ham v. Com. 5 Rand. (Va.) 
669; State v. Odell, 4 Blackf. 156; 
O' Brian v. Stale, 12 Ind. 369; 
State V. Payne, 4 Mo. 376; Nor- 
ton V. State, 14 Tex. 387; Dunn 
V. State, 2 Ark. 229, 35 Am. Dec. 
54. 

2 Wharton, Confl. L. § 933; 



United States v. Furlong, 5 Wheat. 
184, 5 L. ed. 64; Ex parte Robin- 
son, 6 McLean, 355, Fed. Cas. No. 
11,935; Com. v. Goddard, 13 Mass. 
455; State v. Davis, 4 N. J. L. 311; 
Tritiipo V. State, 10 Ind. 345 ; Mise 
V. State, 49 Ga. 375; State v. 6"/- 
monds, 3 Mo. 415 ; Burdett v. State, 

9 Tex. 43. Though see State v. 
Tisdale, 19 N. C. (2 Dev. & B. L.) 
159; Com. v. Bright, 78 Ky. 238. 
See Wharton Crim. PI. & Pr. § 
443; Wharton Crim. Law, 8th ed. 
§§ 264 et seq. 

3 State ex rel. Kolb v. Ennis, 74 
Ind. 17; People v. Greene, 74 Cal. 
400, 5 Am. St. Rep. 448, 16 Pac. 
197; Hays v. Bostick, — Miss. — , 
51 So. 462. 

^Diblee v. Davison, 25 111. 486; 
Holderm'an v. Pond, 45 Kan. 410, 
11 L.R.A. 542, 23 Am. St. Rep. 
734, 25 Pac. 872. 

^Arthur v. Israel, 15 Colo. 147, 

10 L.R.A. 693, 22 Am. St. Rep. 



1176 



EVIDENCE IN CRIMINAL CASES. [CHAP. XII. 



And where a crime is partly consummated in each of sev- 
eral jurisdictions, so that the courts each have jurisdiction 
of the offense, a prosecution cannot be instituted in one juris- 
diction, and then dismissed at the pleasure of the prosecu- 
tion, and commenced in another, and so harass the accused 
in every place in which prosecution can be obtained.^ 

§ 572. Discharge on preliminary proceedings not con- 
clusive. — A discharge of a defendant on proceedings pre- 
liminary to a trial is usually no bar.^ Thus, he is not pro- 
tected from a subsequent prosecution by an ignoramus from 
a grand jury,'' nor by a discharge on habeas corpus.^ 

§ 573. Discharge on nolle prosequi is not a bar. — Ordi- 
narily the entry of a nolle prosequi is not a bar to subsequent 
proceedings on the same charge ; ^ nor, in Massachusetts, is 



381, 25 Pac. 81 ; Michigan Trust 
Co. V. Ferry, 99 C. C. A. 221, 175 
Fed. 667; Field v. Field, 215 111. 
496, 74 N. E. 443; Re Phillips, 158 
Mich. 155, 122 N. W. 554; White 
V. Palmer, 110 Va. 490, 66 S. E. 44. 

6 Coleman v. State, 83 Miss. 290, 
64 L.R.A. 807, 35 So. 937, 1 A. & 
E. Ann. Cas. 406; Ex parte Bald- 
win, 69 Iowa, 502, 29 N. W. 428. 

^ See IVolverton v. Com. 75 Va. 
909. 

2 2 Hale, P. C. 243-246; 2 Hawk. 
P. C. chap. 35, § 6; Reg. v. New- 
ton, 2 Moody & R. 503; Com. v. 
Miller, 2 Ashm. (Pa.) 61. See 
Christmas V. State, 53 Ga. 81 ; 
State V. Harris, 91 N. C. 656; E.v 
parte Clarke, 54 Cal. 412; E.v 
parte Job, 17 Nev. 184, 38 Pac. 699. 

3 See, under South Carolina stat- 
ute. State V. Fley, 2 Brev. 338, 4 
Am. Dec. 583; People ex rel. Lazv- 



rence v. Brady, 56 N. Y. 182; 
Walker v. Martin, 43 111. 508; 
Ex parte Mitchell, 1 La. Ann. 413. 
See People ex rel. Eldridge v. 
Fancher, 3 Thomp. & C. 189; 
People ex rel. Eldridge v. Fan- 
cher, 1 Hun, 27. But see Ex parte 
Jih, 64 Mo. 205, 27 Am. Rep. 218, 
2 Am. Crim. Rep. .217. 

1 Wharton Crim. PI. & Pr. § 
447; United States v. Stowell, 2 
Curt. C. C. 170, Fed. Cas. No. 16,- 
409 ; Com. v. Wheeler, 2 Mass. 172 ; 
Com. V. Tuck, 20 Pick. 356; Bacon 
V. Towne, 4 Cush. 234; State v. 
Main, 31 Conn. 572; Wortham v. 
Com. 5 Rand. (Va.) 669; State 
V. McNeill, 10 N. C. (3 Hawks) 
183; State v. M'Kee, 1 Bail. L. 
651, 21 Am. Dec. 499; State v. Has- 
kett, 3 Hill, (L.) 95; State v. 
Blackxvcll, 9 Ala. 79; Aaron v. 
State, 39 Ala. 75; Ex parte Wins- 



1 



573] 



JUDGMENTS AND JUDICIAL RECORDS. 



1177 



a dismissal by the trial court a bar.^ But, where the nolle 
prosequi is entered after the jury is impaneled, and the case 
is committed to them finally, and then without the consent 
of the defendant and without an order of the court, or the 
authority of some statutory power, such an entry is conclu- 
sive of all subsequent proceedings; and this is true even if the 
trial court approves the entry, if the defendant was in jeop- 
ardy under the Constitution; ^ but where the no//^ /?roj^g/n' 



ton, 52 Ala. 419; Clarke v. State, 
23 Miss. 261 ; Ex parte Donaldson, 
44 Mo. 149. See R. v. Roper, 1 
Craw. & D. C. C. (Ir.) 93; Cotn. 
V. Drew, 3 Cush. 279; People v. 
Von Home, 8 Barb. 160; Gardner 
V. People, 6 Park. Crim. Rep. 155 ; 
State V. Tisdale, 19 N. C. (2 Dev. 
& B. L.) 159; State v. Thornton, 
35 N. C. (13 Ired. L.) 256; State 
V. Colvin, 11 Humph. 599, 54 Am. 
Dec. 58; State v. Patterson, 72 Mo. 
695; Wharton, Crim. PI. & Pr. § 
449; O'Brien v. State, 91 Ala. 25, 
8 So. 560; State v. Child, 44 Kan. 
420, 24 Pac. 952; Com. v. GaUigan, 
156 xMass. 270, 30 N. E. 1142; 
State V. Riiffin, 117 La. 357, 41 So. 
647; State v. Smith, 129 N. C. 546, 
40 S. E. 1 ; State v. Munroe, 26 R. 
I. 38, 57 Atl. 1057; Jackson v. State, 
2,7 Tex. Crim. Rep. 128, 38 S. W. 
1002 ; Guinn v. State, — Tex. Crim. 
Rep. — , 65 S. W. Z76; State v. 
Armstrong, 29 Wash. 57, 69 Pac. 
392; State v. Campbell, 40 Wash. 
480, 82 Pac. 752; Jones v. State, 115 
Ga. 814, 42 S. E. 271; Lascelles v. 
State, 90 Ga. 347, 372, 35 Am. St. 
Rep. 216, 16 S. E. 945. 

^Covi V. Gould, 12 Gray, 171; 
Com. V. Bressant, 126 Mass. 246. 

' United States v. Shoemaker, 2 



McLean, 114, Fed. Cas. No. 16,- 
279; State v. Smith, 49 N. H. 155. 

6 Am. Rep. 480; State v. Roe, 12 
Vt. 94; Com. v. Tuck, 20 Pick. 356; 
Com. V. Kimball, 7 Gray, 328; 
People V. Barrett, 2 Gaines, 304, 2 
Am. Dec. 239; People v. Van 
Home, 8 Barb. 158; McFadden 
V. Com. 23 Pa. 12, 62 Am. Dec. 
308; Mount v. State, 14 Ohio, 295, 
45 Am. Dec. 542; Baker v. State, 
12 Ohio St. 214; Reynolds v. State, 
3 Ga. 53; Weinsorpflin v. State, 

7 Blackf. 186; Harker v. State, 8 
Blackf. 540; Wright v. State, 5 Ind. 
290, 61 Am. Dec. 90; State v. 
M'Kec, 1 Bail. L. 651, 21 Am. Dec. 
499; Jones v. State, 55 Ga. 625, 1 
Am. Crim. Rep. 510; State v. 
Kreps, 8 Ala. 951; Cobia v. State, 
16 Ala. 781; Grogan v. State, 44 
Ala. 9; Barnett v. State, 54 Ala. 
579 ; Ward v. State, 1 Humph. 253 ; 
State V. Connor, 5 Coldw. 311. 
See Reg. v. OnlagJian, Jebb. C. C. 
270 ; United States v. Farring, 4 
Cranch, C. C. 465, Fed. Cas. No. 
15,075 ; Franklin v. State, 85 Ga. 
570, 11 S. E. 876, 8 Am. Crim. Rep. 
291; State v. Patterson, 116 Mo. 
505, 22 S. W. 696; Com. v. Cati//.?^, 
7 Kulp, 539. 



1178 



EVIDENCE IN CRIMINAL CASES. [CHAP. XII. 



is entered with the permission of the court, it is not generally 
a bar, even though the case is open to the jury.* After a 
verdict, a nolle prosequi may operate as a pardon.^ 

§ 574. Verdict of acquittal operates as a bar. — Where 
a verdict of acquittal has been rendered and entered, it is 
not necessary that a judgment should have been entered on 
such verdict, to enable the accused to plead the acquittal as a 
bar to a second prosecution for the same offense.'^ So an 
outstanding verdict of guilty, where the proceedings upon 
which it was rendered remain uncanceled, will operate as a 
bar, even where judgment has not been formally entered.^ 
The same observations apply to a plea of guilty, where tlie 
same has been accepted and entered.^ 



* United States v. Morris, 1 Curt. 
C. C. 23, Fed. Cas. No. 15,815; 
State V. Morgan, 33 Md. 44. See 
Walton V. State, 3 Sneed, 687; 
State V. Connor, 5 Coldw. 311; 
Burnett v. State, 76 Ark. 295, 113 
Am. St. Rep. 94, 88 S. W. 956; 
State V. Brae kin, 113 La. 879, 37 
So. 863; State v. Holton, 88 Minn. 
171, 92 N. W. 541. 

^ State V. Whittier, 21 Me. 341, 
38 Am. Dec. 272; State v. Burke, 
38 Me. 574 ; State v. Roe, 12 Vt. 93 ; 
Com. V. Briggs, 7 Pick. 177; Com. 
V. Tuck, 20 Pick. 356; Com. v. 
Jenks, 1 Gray, 490; People v. Van 
Home, 8 Barb. 158; State v. Flem- 
ing, 7 Humph. 152, 46 Am. Dec. 73. 
See, generally, as to nolle prosequi 
Wharton Crim. PI. & Pr. §§ 383, 
447. 

1 West V. State, 22 N. J. L. 212; 
post, § 609; Reg. v. Rcid, 1 Eng. 
L. & Eq. Rep. 595; State v. Elden, 
41 Me. 165. See 2 Russell, Crimes, 



4th ed. 64, note; State v. Risley, 72 
Mo. 609; People v. Horn, 70 Cal. 
17, 11 Pac. 470; post, § 785; Hines 
V. State, 24 Ohio St. 134; O' Brian 
V. Com. 9 Bush, 333, 15 Am. Rep. 
715, 1 Am. Crim. Rep. 520; People 
V. Goldstein, 32 Cal. 432; Wharton, 
Crim. PI. & Pr. 9th ed. § 490; 
Smith V. Hess, 91 Ind. 424; Thur- 
man v. State, 54 Ark. 120, 15 S. 
W. 84. 

^ State V. Parish, 43 Wis. 395; 
Wharton, Crim. PI. & Pr. § 435; 
United States v. Herbert, 5 Cranch, 
C. C. 87, Fed. Cas. No. 15,354; 
United States v. Keen, 1 McLean, 
429, Fed. Cas. No. 15,510; State 
V. Elden, 41 Me. 165; Ratzky v. 
People, 29 N. Y. 124; Shepherd v. 
People, 25 N. Y. 407; West v. 
State, 22 N. J. L. 212; Prcslon v. 
State, 25 Miss. 383; State v. Spear, 
6 Mo. 644; Lezvis v. State, 1 Te.x. 
App. 323. 

^People V. Goldstein, 22 Cal. 



§ 575] JUDGMENTS AND JUDICIAL RECORDS, 1179 

The obvious reasons why verdicts and pleas duly entered 
and accepted should have a binding effect, where there is no 
formal entry of judgment, appear in the fact that in this view 
the entry of the judgment is only a confirmation of the actual 
proceedings, and relates back to the date of the entry of the 
verdict or plea, the verdict or plea operating as the actual 
evidence of conviction. Thus, where a verdict was rendered 
on Sunday, judgment may be entered on the following day,* 
or may be pronounced at a term subsequent to that at which 
the verdict was rendered.^ 

It is not necessary that the information or the indictment 
on which the accused was convicted should be at hand, to 
enable the court to pronounce judgment.^ To operate as a 
bar to another proceeding, such verdict or plea must be final 
in its character, and nothing remain to be done except to enter 
judgment on the same. Thus, where the prosecuting officer, 
after conviction, concedes that the indictment would not sus- 
tain the judgment, and proceeds to trial upon a second in- 
dictment,' or where the accused has filed a motion for a new 
trial pending the entry of the judgment, or where the judg- 
ment has been arrested.^ such verdict of plea would not oper- 
ate as a bar. 

§ 575. Criminal prosecution not barred by pendency 
of civil action; mitigation. — Prosecution to convict of the 
offense, and proceedings to recover civil damages, may pro- 

432. See State v. Lang, 63 Me. 220 ; Ohio, 295, 45 Am. Dec. 542. But 

post, § 577. see Pate v. State, 21 Tex. App. 191, 

4 Chamblee v. State, 78 Ala. 466. 17 S. W. 461. 

^ Clanton v. State, 96 Ala. Ill, 11 ''Com. v. Huffman, Addison, Pa. 

So. 299; People v. Felix, 45 Cal. 140. 

163. But see People ex rel. Boencrt ^ R. v. Houston, 2 Craw. & D. 

V. Barrett, 202 111. 287, 63 L.R.A. 82, C. C. (Ir.) 310; Joy v. State, 14 

95 Am. St. Rep. 230, 67 N. E. 23. Ind. 139; Com. v. Purchase, 2 Pick. 

^ Klein v. State, 157 Ind. 146, 521, 13 Am. Dec. 452. See Whar- 

60 N. E. 1036; Mount v. State, 14 ton, Crim. PI. & Pr. § 507, note 8. 



1180 EVIDENCE IN CRIMINAL CASES. [CHAP. XII. 

ceed concurrently or independently of each other.^ The rule 
is that proceedings in a criminal prosecution will not be barred 
by the fact that a prior civil suit has been instituted for the 
same cause of action, as in such cases the parties to the action 
are not the same. 

The view prevailed in England that a person injured by a 
felony could not proceed in a civil suit to recover damages, 
if he failed to prosecute the criminal action.^ This was mod- 
ified by a later ruling,^ but even in England the rule never ap- 
plied to misdemeanors.* The reason for the English rule is 
that the duty of prosecuting in felonies fell on the party in- 
jured, but in this country the responsibility devolves on the 
state.^ In England, where the injured party receives a part 
of the fine imposed, it is admissible to introduce the judgment 
in the criminal proceeding in mitigation of the damages ; ^ and 
it has been held in one case that in a civil action for assault 
and battery the jury may consider that the defendant had been 
fined in the criminal prosecution, in assessing the damages in 
the civil action;'^ but the general rule is that the judgment in 
the criminal proceeding is entirely distinct, and one sliould 
not interfere with the course of the other, and that the punish- 
ment of the defendant is not to be regarded in the civil suit,® 

1 Jones V. Clay, 1 Bos. & P. 191 ; S. 285, 9 Jur. N. S. 232, 7 L. T. N. 
Benjamin v. Storr, L. R. 9 C. P. S. 751. See London L. T. April 12, 
400, 43 L. J. C. P. N. S. 162, 30 L. 1879. 

T. N. S. 362, 22 Week. Rep. 631, 19 * See note 2, above; Fissington 

Eng. Rnl. Cas. 263; United States v. Hutchinson, 15 L. T. N. S. 390. 

V. New Bedford Bridge, 1 Woodb. ^ Noivlan v. Griffin, 68 Me. 235. 

& M. 401, Fed. Cas. No. 15,867; 28 Am. Rep. 45; Quiniby v. Blackey. 

Portland v. Richardson, 54 Me. 46, 63 N. H. 77; Short v. Barker, 22 

89 Am. Dec. 720 ; Francis v.Schoell- Ind. 148; Cannon v. Burris, 1 Hill. 

kopf, 53 N. Y. 152; Abbott v. (L.) 372; Mitchell v. Minis, 8 

Mills, 3 Vt. 521, 23 Am. Dec. 222. Tex. 8. 

2 Crosby v. Leng, 12 East, 409, 6 Jacks v. Bell, 3 Car. & P. 316. 
413, 11 Revised Rep. 437, 1 Eng. "^Cherry v. McCall, 23 Ga. 193. 
Rul. Cas. 559. 8 Wheatley v. Thorn, 23 Miss. 62 ; 

^Wcllock V. Constantine, 2 Tozvle v. Blake, 48 N. H. 92; Jar- 
Hurlst. & C. 146, 32 L. J. Exch. N. vis v. Manlove, 5 Harr. (Del.) 452; 



§ 576] JUDGMENTS AND JUDICIAL RECORDS. 1181 

but, if admissible at all, it is only by way of mitigation of ex- 
emplary damages, where the fine has been paid or the punish- 
ment suffered by the accused in the criminal case.' Where 
the English rule prevails, that the civil proceeding could not 
be instituted until after the conviction, or where there was a 
doubt as to the actions being concurrent, it seems that the 
court took into consideration the civil procedure in adjusting 
sentence on the criminal, and so molded the proceedings that 
no injustice was done.^° 

§ 576. Judgments of military, consular, and miners* 
courts. — To give a binding effect to a judgment, it is not 
necessary that the judgment should be that of a court of com- 
mon-law jurisdiction. Military courts exist by the same au- 
thority as the civil courts of the United States, and have the 
same plenary jurisdiction of offenses under the military law 
as civil courts have in controversies justiciable in them. 
Therefore the judgment of a military court or court-martial, 
properly constituted, establishes res judicata, and its proceed- 
ings are not open to review in any other court.^ 

The extent of the jurisdiction of a military court is nec- 
essarily determined by the character of the order establish- 
ing it. Thus, if the order establishing such a court suspended 

Cook V. Ellis, 6 Hill, 466, 41 Am. L. ed. 823, 17 Sup. Ct. Rep. 448: 

Dec. 757. Re White, 9 Sawy. 49, 17 Fed. 723 ; 

^Flanagan v. Womack, 54 Tex. Re Davison (C. C.) 21 Fed. 618; 

46; Shook v. Peters, 59 Tex. 393. Re McVey (D. C.) 23 Fed. 878; 

^^ See Rex V. Rhodes, 2 Strange, Re Zimmerman (C. C.) 30 Fed. 

703; State v. Frost, 1 Brev. 385; 176; Vanderheyden v. Young, 11 

Buckner v. Beck, Dud. L. 168; Johns. 150; Mills v. Martin, 19 

State V. Blennerhasset, Walk. Johns. 7 ; Duffield v. Smith, 3 Serg. 

(Miss.) 7. & R. 590; Brown v. Wadszvorth, 15 

1 Dynes v. Hoover, 20 How. 65, Vt. 170, 40 Am. Dec. 674 ; Chester- 

15 L. ed. 838; Ex parte Reed, 100 field v. Perkins, 58 N. H. 573; 

U. S. 13, 25 L. ed. 538; Szvaim v. IVooley v. United States, 20 Law 

United States, 165 U. S. 553, 41 Rep. 631. 



1182 EVIDENCE IN CRIMINAL CASES. [CHAP. XII. 

or superseded the civil laws in the district, its jurisdiction 
would be exclusive, and a judgment rendered by it would be 
conclusive on the civil courts as to the same offense. But 
if the civil laws were not suspended or superseded, the civil 
courts would continue to exercise their ordinary jurisdic- 
tion; ^ and the civil courts might inquire into the jurisdiction 
of the court-martial, and, if the person condemned was not 
subject to military jurisdiction, might discharge him from 
sentence.' It has also been held, entirely in accord with the 
doctrines of international law, that the judgment of a mili- 
tary court erected by the commandant of the forces occupying 
a district of conquered territory, for the general administra- 
tion of justice therein, is binding and conclusive upon the 
parties in all other courts.* But this clear and tenable posi- 
tion was afterwards receded from, on the ground that while 
the commandant might establish such a court for the trial of 
military offenses, it could not act as a civil commission to try 
civil actions.^ But ordinarily an offense against a state is not 
barred by the action of a Federal court-martial,^ nor is a 
court-martial barred by a state prosecution for the same of- 
fense in its state aspects.' Where, however, a court-martial 

2 Coleman v. Tennessee, 97 U. S. 39 L. ed. 914, 15 Sup. Ct. Rep. 773; 

509, 24 L. ed. 1118; Tennessee v. Barrett v. Hopkins, 2 McCrary, \29, 

Hibdom, 23 Fed. 796; Re Ezeta, 62 7 Fed. 312; Re Esmond, 5 ]\Iackey. 

Fed. 1004. See United States v. 64. 

Barnhart, 10 Sawy. 491, 22 Fed. ^Hefferman v. Porter, 6 Coldw. 

289 ; Tucker v. Alexandroff, 183 U. 391, 98 Am. Dec. 459. 
S. 458, 46 L. ed. 278, 22 Sup. Ct. ^IValt v. Thomasson, 10 Heisk. 

Rep. 195; Motherwell v. United 151. But see 3 Ops. of Atty. Gen. 

States, 48 C. C. A. 97, 107 Fed. 448; 466. See United States v. Cashiel. 

Carter v. McClaiighry, 183 U. S. 1 Hughes, 552, Fed. Cas. No. 

383, 46 L. ed. 246, 22 Sup. Ct. Rep. 14,744. 
181. ^ State V. Rankin, 4 Coldw. 145. 

8 Re Grimley, 137 U. S. 147, 34 'See 3 Ops. Atty. Gen. 750; 

L. ed. 636, 11 Sup. Ct. Rep. 54; supra, § 571; United States v. 

Wales V. Whitney, 114 U. S. 564, Cashiel, 1 Hughes, 552, Fed. Cas. 

29 L. ed. 277, 5 Sup. Ct. Rep. 1050; No. 14,744. 
Johnson v. Sayre, 158 U. S. 109, 



§ 576a] JUDGMENTS AND JUDICIAL RECORDS. 1183 

has by law exclusive jurisdiction to try an offense, tlien its 
judgment, as already observed, is a bar to the proceedings of 
other courts.^ 

The same principles apply to other courts established by 
provisional governments. Thus, where a consular court has 
jurisdiction to make a preliminary examination, with a view 
to holding the accused for trial in a higher court, a plea in 
bar was introduced that such court had dismissed the charges 
against accused, and served upon him new charges; and such 
ruling was consistent with the conclusion that the court did 
not determine the question of guilt or innocence, but merely 
held the accused to answer before the court having jurisdic- 
tion to determine that question.^ 

And in the case of miners' courts established in that part of 
the territory of Kansas now embraced within the state of 
Colorado, the general assembly of the state confirmed and 
legalized the judgments of such provisional courts, and gave 
to them probative force. ^° 

la. Jeopardy. 

§ 576a. Jurisdiction of court. — It is essential, to sustain 
a plea of former jeopardy, that the judgment plead in bar 
should have been entered by a court having jurisdiction of 
the accused and of the offense.^ Not only must such court 
have had jurisdiction, but it must have had final jurisdiction.^ 
Thus, a conviction in the circuit court of the United States 
for a crime of which that court had no jurisdiction does not 

8 Supra, note 2. Com. v. Peters, 12 Met. 387 ; State 

^ Price V. United States, 15 L.R.A. v. Cross, 44 W. Va. 315, 29 S. E. 

(N.S.) 1272, 85 C. C. A. 247, 156 527; Peterson v. State, 79 Neb. 132, 

Fed. 950, 13 A. & E. Ann. Cas. 483. 14 L.R.A. (N.S.) 292, 126 Am. St. 

10 Mills's Anno. Stats. (Colo.) Rep. 651, 112 N. W. 306. 
§§ 2586-2589. 2 Com. v. Goddard. 13 Mass. 455. 

^Com. V. Roby, 12 Pick. 496; 



1184 



EVIDENCE IN CRIMINAL CASES. [CIIAP. XII. 



bar a prosecution for the same offense by a state court.' A 
conviction of homicide before a court not having jurisdic- 
tion to try the accused for that crime will not sustain a plea 
of once in jeopardy.* A conviction before a justice of the 
peace not having jurisdiction of the ofifense is not a bar to a 
subsequent prosecution for the same offense in a court which 
has jurisdiction.^ It is also essential that the proceedings be- 
fore the court shall be at a proper term of the court, on one 
of the regular juridical days, and that the judge hearing the 
cause shall be competent to try the charge. Thus, where a 
person is tried at an unauthorized special term of the court,^ 
or at a time to which the court had been unlawfully ad- 
journed; ' or where the presiding judge was incompetent, and 
the proceedings were irregular and void,* the accused cannot 
plead former jeopardy upon a subsequent prosecution for the 
same offense. But in the case of concurrent jurisdiction in 
different courts, the first court rightfully exercising its juris- 
diction acquires control of the offense, to the exclusion of 
the others, and such judgment is a bar to a prosecution for 
the same offense in any other court having concurrent juris- 
diction thereof.^ 



^Blyezv v. Com. 91 Ky. 200, 15 
S. W. 356; Com. v. Peters, 12 Met. 
387; Montross v. State, 61 Miss. 
429; Canter v. People, 38 How. 
Pr. 91. 

* Packer v. People, 8 Colo. 361, 8 
Pac. 564. 

5 State V. Phillips, 104 N. C. 786, 
10 S. E. 463; Hodges v. State, 5 
Coldw. 7; O' Brian v. State, 12 Ind. 
369; State v. Payne, 4 Mo. 376; 
Alford V. State, 25 Fla. 852, 6 So. 
857; State v. Odell, 4 Blackf. 156; 
Siebert v. State, 95 Ind. 471 ; State 
V. Hodgkins, 42 N. H. 474; Flour- 
uoy V. State, 16 Tex. 30. See State 



V. Bruce, 68 Vt. 183, 34 Atl. 701; 
Brown v. State, 120 Ala. 378, 25 So. 
203; Crozvder v. State, 69 Ark. 330, 
63 S. W. 669; Huffman v. State, 84 
Miss. 479, 36 So. 395; Gibson v. 
State, 47 Tex. Crim. Rep. 489, 83 S. 
W. 1119; Murphy v. Com. 23 Gratt. 
960 ; State v. Fox, 83 Conn. 286, 76 
Atl. 302, 19 A. & E. Ann. Cas. 682. 

^Dunn V. State, 2 Ark. 229, 35 
Am. Dec. 54. 

''Re McClaskey, 2 Okla. 568, 37 
Pac. 855. 

^Glasgow v. State, 9 Baxt. 485. 

^Burdett v. State, 9 Tex. 43; 
State V. Bowers, 94 N. C. 910; State 



§§ 577,578] JUDGMENTS AND JUDICIAL RECORDS. 1185 

§ 577. Conclusiveness of a judgment on a plea of nolo 
contendere. — The legal effect of a plea of nolo contendere 
is the same as that of a plea of guilty, as regards all the pro- 
ceedings on the indictment,^ and it justifies the court in im- 
posing a sentence.^ Such a plea being equivalent to a plea of 
guilty, a judgment found thereon is conclusive as against a 
subsequent criminal prosecution for the same offense.^ But 
where such plea is accompanied by a protestation of innocence, 
it is not conclusive upon the accused in a civil action, nor will 
it prevent him from controverting the fact of guilt.* Judg- 
ment may be arrested on a plea of nolo contendere where the 
indictment is defective.* 

§ 578. Identity of offenses as constituting a bar. — As 

an illustration of the rule that the offenses must be identical 
in order to enable an acquittal or conviction on a former trial 
to be received in evidence to bar proceedings on a second trial, 
it may be here mentioned that an acquittal on ground of mis- 
nofner of third parties or of things is no bar to a second 
indictment for the same offense, accurately describing the third 
parties or things ; ^ nor is an acquittal on account of a wrong 

V. Tisdale, 19 N. C. (2 Dev. & B. 221, Fed. Cas. No. 15,318; Com. v. 

L.) 159; State v. Roberts, 98 N. C. Tilton, 8 Met. 232. See Birchard v. 

756, 3 S. E. 682; Hadley v. State, Booth, 4 Wis. 67; Barker v. Almy, 

16 Tex. App. 444. See People v. 20 R. I. 367, 39 Atl. 185 ; Doughty 

Connor, 142 N. Y. 130, 36 N. E. 807. v. Deamoreel, 22 R. I. 158, 46 Ati. 

1 United States v. Hartivcll, 3 838. 
Cliflf. 221, Fed. C^s. No. 15,318. See 5 Com. v. Northampton, 2 Mass. 

Com. V. Adams, 6 Gray, 359; Com. 166; Com. v. Grey, 2 Grey, 501, 61 

V. IngersoU, 145 Mass. 381, 14 N. Am. Dec. 476. 
E. 449. 12 Hale, P. C. 247; Rex. v. Coo- 

^Com. V. Holstine, 132 Pa. 357, gan, 1 Leach, C. L. 448; Reg. v. 

19 Atl. 273. Green, Dears, & B. C. C. 113, 26 

3 State V. Lang, 63 Me. 220. See L. J. Mag. Cas. N. S. 17, 2 Jur. N. 

Buck V. Com. 107 Pa. 486. S. 1146, 5 Week. Rep. 52, 7 Cox, C. 

'^Com. V. Norton, 9 Pick. 206; C. 186; Re.v v. Champneys, 2 

United States v. Hartivell, 3 Cliff. Moody & R. 26; Slate v. Sias, 17 N. 
Criin. Ev. Vol. II.— 75. 



1186 EVIDENCE IN CRIMINAL CASES. [CHAP. XII. 

venue a bar to an indictment in which the right venue is laid; ^ 
nor is an acquittal on ground of a false allegation of time, in 
cases where time is essential, a bar to a subsequent indict- 
ment giving the time correctly.' 

Nor is the conviction of a sale to one person of oil below 
the statutory test a bar to a prosecution for subsequent sales 
to different persons ; * nor is an acquittal of homicide commit- 
ted by shooting, a bar to an indictment for homicide commit- 
ted by beating upon the head with a gun, as the two offenses 
are distinct as regards jeopardy;* nor is an acquittal of lar- 
ceny a bar to prosecution for perjury committed on the trial 
for larceny ; ^ nor is an acquittal for the larceny of certain 
bonds a bar to a conviction for a conversion of the same 
bonds;'' nor is an acquittal on charge of having counterfeit 
money in possession, with intention of passing it, a bar to an 
indictment for a like offense based upon an entirely different 
transaction, though on the first trial, for the purpose of show- 
ing a guilty knowledge, proof of the same kind is produced 
as on the second trial ; * and these distinctions are further 
illustrated by the following cases : * 

II. 558; Com. v. JVade, 17 Pick. ^ Guedel v. People. 43 111. 226. 

395; Com. v. Sutherland, 109 IMass. ^ State v. Caywood, 96 Iowa, 367, 

342; Com. v. Trimmer, 84 Pa. 65 N. W. 385. 

68; Burrcs v. Com. 27 Gratt. 934, 39 ^ Com. v. Temtey, 97 Mass. SO. 

Am. Dec. 407; Durham v. People, For note on question whether ac- 

5 111. 172; State v. Rishcr, 1 Rich. quittal of larceny is bar to prose- 

L. 219; Davis v. State, 58 Ga. 173; cution for forgery in the same 

Martha v. State, 26 Ala. 72: State transaction, see 4 L.R.A.(N.S.) 402. 

V. McGraw, Walk. (Miss.) 208; ^ Re ^^an Houton, 2 N. Y. City 

Hite V. State, 9 Yerg. 357; supra, Hall Rec. 7Z. 

§§ 91, et seq. 9 Com. v. Fredericks, 155 Mass. 

2 Vaux's Case, 4 Coke, 44a, 45 455, 29 N. E. 622 ; State v. Hon-c, 27 
b; Methard v. State, 19 Ohio St. Or. 138, 44 Pac. 672; State v. Tay- 
363 ; supra, § 107. lor, 2 Bail. L. 49 ; Hite v. State, 9 

3 Rex V. Taylor, 3 Barn. & C. 502 ; Yerg. 357 ; State v. Ellison, 4 Lea, 
supra, § 106. 229; Szvindel v. State, 32 Tex. 102; 

^Downing v. State, 66 Ga. 160. Boggess v. State, 43 Tex. 347; 



§ 578] 



JUDGMENTS AND JUDICIAL RECORDS. 



1187 



The general rule as to proving the identity of the offenses 
so as to support a plea of former jeopardy upon that ground 
is that the offenses must be shown by the accused to be one 
and the same; that the offense for which he is on trial was 
described in the first indictment, or so necessarily connected 
with it that judgment could have been rendered upon the of- 
fense upon conviction of the accused.^" The test to determine 
the identity of the second offense is whether or not the evi- 
dence necessary to convict in the second case was admissible 



Sims V. State, 21 Tex. App. 649, 1 S. 
W. 465, 6 Am. Crim. Rep. 253; 
Burks V. State, 24 Tex. App. 326, 6 
S.' W. 300 ; People v. Kenn, 8 Utah, 
268, 30 Pac. 988; Com. v. Somer- 
znlle, 1 Va. Cas. 164, 5 Am. Dec. 
514; Page v. Com. 27 Gratt. 954; 
State V. Day, 5 Penn. (Del.) 101, 
50 Atl. 946 ; State v. Morgan, 95 N. 
C. 641; Methard v. State, 19 Ohio 
St. 363; State v. McMinn, 34 Ark. 
160; United States v. Three Copper 
Stills, 47 Fed. 495; United States 
V. Butler, 38 Fed. 498; United 
States V. Randenbush, 8 Pet. 288, 
8 L. ed. 948; Fezvs v. State, 1 Ga. 
App. 122, 58 S. E. 64; Moody v. 
State. 1 Ga. App. 772, 58 S. E. 262 ; 
Price V. United States, 15 L.R.A. 
(N. S.) 1272, 85 C. C. A. 247, 156 
Fed. 951, 13 A. & E. Ann. Cas. 
483. 

See Thoynas v. United States, 17 
L.R.A.(N.S.) 720, 84 C. C. A. 477, 
156 Fed. 897; People v. Boos, 155 
Mich. 407, 120 N.W.U;Re Mal- 
lon, 16 Idaho, 7Z7, 22 L.R.A. (N.S.) 
1123, 102 Pac. 374; Grayson v. State, 
92 Ark. 413, 123 S. W. 388, 19 A. 
& E. Ann. Cas. 929; State v. 
Hussey, 145 Mo. App. 671, 123 S. 



W. 485; Wallace v. State, 41 Fla. 
547, 26 So. 713; Riffe v. Com. 21 
Ky. L. Rep. 1331, 56 S. W. 265; 
Carter v. Com. 25 Ky. L. Rep. 688, 
76 S. W. 337. 

But see State v. Wiseback, 139 
Mo. 214, 40 S. W. 946; Davidson 
V. State, 40 Tex. Crim. Rep. 285, 
49 S. W. 372, 50 S. W. 365 ; White 
V. Ray, 8 Pick. 467; Com. v. Roby, 
12 Pick. 496; State v. Pianfetti, 79 
Vt. 236, 65 Atl. 84, 9 A. & E. Ann. 
Cas. 127. 

!•* Com. V. Goodenough, Thacher 
Crim. Cas. 132; State v. Cooper, 13 
N. J. L. 361, 25 Am. Dec. 490; Peo- 
ple V. Saunders, 4 Park. Crim. Rep. 
196. See Marshall v. State, 8 Ind. 
498; State v. Gapen, 17 Ind. App. 
524, 45 N. E. 678, 47 N. E. 25 ; Mil- 
ler V. State, 33 Ind. App. 509, 71 N 
E. 248; State v. Shafer, 20 Kan. 
226; State v. Virgo, 14 N. D. 293, 
103 N. W. 610; Com. v. Shoener. 
216 Pa. 71, 64 Atl. 890; Clement v. 
State, — Tex. Crim. Rep. — , 86 S. 
W. 1016; O'Donnell v. People, 110 
111. App. 250; Gallagher v. People, 
211 111. 158, 71 N. E. 842; Williams 
V. State, 58 Tex. Crim. Rep. 193, 
125 S. W. 42. 



1188 



EVIDENCE IN CRIMINAL CASES. [CHAP. XII. 



under the first charge, that it related to the same charge, and 
warranted a conviction on the first charge. ^^ It should be 
observed, however, that where the same offense is averred 
merely as of a different date, or where the offenses correspond 
in all respects except as to the name of the person, or the 
names are idem sonans, or there is an abbreviation of, or an 
omission of the first name, the offenses are generally held to 
be identical, so as to support the plea of former jeopardy.^^ 

§ 579. Acquittal on a defective indictment is no bar; 
exception. — In criminal prosecutions, when the evidence 
necessary to support the second indictment would have been 
sufficient to sustain a legal conviction on the first, then the 
first procedure is a bar to a second indictment for the same 
offense.^ The general rule is that an acquittal on a defective 



" Warren v. State, 79 Neb. S26, 
113 N. W. 143; State v. Dezvecs, 76 
S. G. 72, 56 S. E. 674. 11 A. & E. 
Ann. Cas. 991 : Grafton v. United 
States, 206 I J. S. 333. 51 L. ed. 1084, 
27 Sup. Ct Rep. 749, 11 A. & E. 
Ann. Cas. 640; Alexander v. State, 
53 Tex. Crim. Rep. 553, 110 S. W. 
918; State v. Van Bnrcn, 86 S. C. 
297, 68 S. E. 568. 

^^ Goode V. State. 70 Ga. 752; 
Knight v. State, 73 Ga. 803; Knox 
V. State, 89 Ga. 259, 15 S. E. 308; 
Durham v. People, 5 III. 172. 39 
Am. Dec. 407; Rocco v. State, 37 
Miss. 357; People v. Allen. 1 Park. 
Crim. Rep. 445; State v. Hcndrick. 
179 Mo. 300, 78 S. W. 630; Stale 
V. Szvifcer. 65 S. C. 187. 43 S. E. 
513. 

iSee Goode v. State. 70 Ga. 752; 
Hirsh field v. State, 11 Tex. App. 
207; State v. Stezvart, 11 Or. 52, 4 
Pac. 128; Rex v. Vandercomb, 2 



Leach, C. L. 708. 2 East. P C. 519: 
Rex V. Sheen, 2 Car. & P. 634 ; Rex 
V. Clark, 1 Brod. & B. 473 : Rex v. 
Emden, 9 East, 437; Com. v. Clair, 
7 Allen, 525; Heikes v. Com. 26 Pn. 
513; Com. v. Trimmer, 84 Pa. 65; 
Mitchell V. State, 42 Ohio St. 383, 
Jervis's Archbold, Crim. Pr. & Pi. 
82 ; Keeler, 58 ; 1 Leach. C. L. 448 ; 
Reg. V. O'Brien. 46 L. J. N. S. 177, 
15 Cox, C. C. 129; Com. v. Cun- 
ningham. 13 Mass. 245; Com. v. 
Wade, 17 Pick. 395; Com. v. Ten- 
ney, 97 Mass. 50; Com. v. Hoffman, 
121 Mass. 369; State v. Reed, 12 
Md. 263; Price v. State, 19 Ohio 
423; Gerard v. People. 4 111. 363; 
Guedel v. People, A3 111. 226; State 
V. Gleason, 56 Iowa, 203. 9 N. W. 
126 ; State v. Moon, 41 Wis. 684, 2 
Am. Crim. Rep. 64; State v. El- 
lison, 4 Lea, 229; State v. Ray, 
Rice L. 1. 33 Am. Dec. 90; State v. 
Risher, 1 Rich. L. 219; State v. 



579] 



JUDGMENTS AND JUDICIAL RECORDS. 



1189 



or an insufficient indictment is not a bar to a second prosecu- 
tion.^ This general rule is subject to two exceptions; first, 
where the accused is convicted on a defective indictment and 
has served the sentence, such conviction can always be pleaded 
in bar to a subsequent prosecution for the same offense;^ 
second, where there is a verdict of acquittal or an insufficient 
indictment which is not objected to before the verdict is en- 
tered, such acquittal is a bar to the second indictment for 
the same offense, even though such verdict is not followed by 
any judgment.* But where the accused obtains a reversal 
of a judgment on the ground of an insufficient indictment, 
he cannot afterwards plead such conviction as a bar to a 
second indictment.^ 

In conformity with what has been stated, after a judgment 
has been arrested or reversed on a defective indictment, or 
after an indictment has been quashed, or after a judgment 



Birmingham, 44 N. C. (Busbee, L.) 
120; State v. Shirer, 20 S. C. 392; 
State V. Kuhuke, 30 Kan. 462, 2 Pac. 
689 ; Holt v. State, 38 Ga. 187 ; Mur- 
ray V. State, 21 Tex. App. 621, .S7 
Am. Rep. 623, 2 S. W. 757. 

2 Vaux's Case, 4 Coke, 45a ; Com. 
V. Clair, 7 Allen, 525; People v. 
Barrett, 1 Johns. 66; Com. v. Som- 
erville, 1 Va. Cas. 164, 5 Am. Dec. 
514; Price v. State, 19 Ohio, 423; 
Mount V. Com. 2 Duv. 93 ; Black 
V. State, 36 Ga. 447, 91 Am. Dec. 
772; Whitley v. State, 38 Ga. 50, 
Waller v. State, 40 Ala. 325 ; State 
V. McGraii', Walk. (Miss.) 208; 
Munford v. State, 39 Miss. 558; 
State V. Horneman, 16 Kan. 452, 2 
y\m. Grim. Rep. 427; State v. 
Brozvn, 110 La. 591, 34 So. 698, 15 
Am. Grim. Rep. 286. 

3Com. V. Loud, 3 Met. 328, 2,7 
Am. Dec. 139; Com. v. Keith, 8 



Met. 531; Frit:: v. State, 40 Ind. 
18. 

4 United States v. Ball, 163 U. S. 
662, 41 L. ed. 300. 16 Sup. Ct. Rep. 
1192. See State v. Hall, 141 Mo. 
App. 701, 125 S. W. 229; State v. 
Polk, 144 Mo. App. 326, 127 S. W. 
92>Z. 

5 United States v. Ball, 163 U. S. 
662, 41 L. ed. 300, 16 Sup. Gt. Rep. 
1192. See Murphy v. Massachu- 
.setts, \77 U. S. 158, 44 I., ed. 714, 
20 Sup. Gt. Rep. 639; Ogle v. State, 
43 Tex. Grim. Rep. 219. 228. 96 Am. 
St. Rep. 860, 63 S. W. 1009. 15 Am. 
Grim. Rep. 321 ; Kepncr v. United 
States, 195 U. S. 129, 49 L. ed. 124, 
24 Sup. Gt. Rep. 797, 1 A. & E. 
Ann. Gas. 655; United States v.' 
Owens, 2 Alaska, 480; Trono v. 
United States, 199 U. S. 533, 50 L. 
ed. 297, 26 Sup. Gt. Rep. 121, 4 A. 
& E. Ann. Gas. 773. 



1190 



EVIDENCE IN CRIMINAL CASES. [CHAP. XII. 



has been entered for the accused on a demurrer, a second in- 
dictment can be found, correcting the defects of the first, 
and the proceedings under the first indictment will not bar 
proceedings under the second indictment.^ 

Also, an erroneous acquittal is conclusive, so that the de- 
fendant cannot be retried for any offense of which he could 
have been convicted under the indictment, on which he was 
acquitted.'' 

But where the acquittal has been brought about by fraud 
or collusion, it cannot be pleaded in bar to another indictment 
or information for the same offense.* 



* Withipole's Case, Cro. Car. 147 ; 
Reg. V. Drury, 3 Cox, C. C. 544, 3 
Car. & K. 193, 18 L. J. Mag. Cas. 
N. S. 189; Rex v. Houston. 3 Craw. 
& D. C. C. (Ir.) 310; Rex v. IVild- 
ey, 1 Maule & S. 183; Com. v. 
Gould, 12 Gray, 171 ; People v. Cas- 
boriis, 13 Johns. 351 ; Com. v. Zepp, 
3 Clark (Pa.) 311; Cochrane v. 
Slate, 6 Md. 400; Com. v. Hat ton, 
3 Gratt. 623; State v. Ray, Rice, L, 
1. 33 Am. Dec. 90; State v. Pliil, 1 
Stew. (Ala.) 31; Turner v. State, 
40 Ala. 21; Jeffries v. State, 40 
Ala. 381; post, § 582; Wharton. 
Crim. PI. & Pr. § 547; Croft v. 
People. 15 Hun, 484; Mixon v. 
State, 35 Tex. Crim. Rep. 458, 34 
S. W. 290; Ford v. State, 7 Ind. 
App. 567, 35 N. E. 34 ; Huff v. Com. 
19 Ky. L. Rep. 1064, 42 S. W. 907; 
See Shoemaker v. State, — Tex. 
Crim. Rep. — , 126 S. W. 887. 

7 2 Co. Inst. 318; 2 Hale, P. C. 
274; Rex v. Sutton, 5 Barn. & Ad. 
52, 2 Nev. & M. 57, 2 L. J. Mag. 
Cas. N. S. 75; Rex v. Praed, 4 
Burr. 2257; Rex v. Mann. 4 Maule 
& S. 337; State v. Kittle, 2 Tyler 



(Vt.) 471 ; State v. Brown, 16 Conn. 
54; People v. Mather, 4 Wend. 229, 
21 Am. Dec. 122 ; State v. Taylor, 8 
N. C. (1 Hasvks) 462; Black v. 
State, 36 Ga. 447, 91 Am. Dec. 772; 
State V. Dark, 8 Blackf. 526 ; Stat^ 
V. Non'ell, 2 Yerg. 24, 24 Am. Dec. 
458; Slaughter v. State, 6 Humph. 
410; People v. Roberts, 114 Cal. 67, 
45 Pac. 1016 ; People v. Terrill, 132 
Cal. 497, 64 Pac. 894; Roland v. 
People, 23 Colo. 283, 47 Pac. 269; 
Nordlinger v. United States. 24 
App. D. C. 406, 70 L.R.A. 227; 
Tufts V. State, 41 Fla. 663. 27 So 
218. See Newlin v. People, 221 111. 
166, 77 N. E. 529; Dunn v. State. 
70 Ind. 47; State v. Newkirk, 80 
Ind. 131; Brown v. United States, 2 
Ind. Terr. 582, 52 S. W. 56; State 
V. Dewey, 73 Kan. 735, 85 Pac. 796, 
88 Pac. 881; State v. Taylor, — 
Miss. — , 23 So. 34; State v. IVear. 
145 Mo. 162, 46 S. W. 1099 ; Georcn- 
V. State, 59 Neb. 163, 80 N. W. 48b ; 
Carano v. State, 24 Ohio C. C. 93; 
Biirress v. Com. 27 Gratt. 934. 

^ State V. Little, 1 N. H. 257; 
Com. V. Jackson, 2 Va. Cas. 501 ; 



§ 580] 



JUDGMENTS AND JUDICIAL RECORDS. 



1191 



§ 580. Conviction on one criminal aspect of an offense 
is a bar to conviction on the other. — Wherever an unlaw- 
ful act has two criminal aspects, under either of which it is 
indictable, and the evidence of either of which would sustain 
an indictment for the other, then an indictment for one aspect 
absorbs the case, and there can be no further prosecution for 
the act. In other words, when the evidence necessary to 
support the second indictment would have supported the first, 
the second is barred by a conviction or acquittal on the first.^ 
Thus, where a riot consists of a series of tumultuous assaults, 
the defendant, after being convicted of the riot, cannot be put 
on trial for the constituent assaults ; ^ nor, when a riot consists 



Bradley v. State, 32 Ark. 722 ; 5m/- 
son V. People, 31 111. 409; IVatfcins 
V. State, 68 Ind. 427, 34 Am. Rep. 
273; Halloran v. State, SO Ind. 586; 
State V. Green, 16 Iowa, 239; Com. 
V. Alderman, 4 Mass. 477 ; Com. v. 
Dascom, 111 Mass. 404; State v. 
Simpson, 28 Minn. 66, 41 Am. Rep. 
269, 9 N. W. 78; State v. Cole, 4S 
Mo. 70; State v. Swepson, 79 N. C. 
632; State v. Atkinson, 9 Humph. 
677. See State v. Wakefield, 60 Vt. 
618, IS Atl. 181 ; Thomas v. State. 
114 Ala. 31, 21 So. 784; State v. 
Caldivell, 70 Ark. 74, 66 S. W. 150 ; 
De Bord v. People. 27 Colo. 277, 83 
z\m. St. Rep. 89, 61 Pac. 599; Pet- 
ers V. Koepke, 156 Ind. 35, 59 N. E. 
33; State v. Smith, 57 Kan. 673, 47 
Pac. 541; State v. Moore, 136 N. 
C. 581, 48 S. E. 573 ; State v. Reed, 
26 Conn. 202 (but it seems that the 
collusion and fraud necessary to 
avoid an acquittal must be by the 
procurement of the accused him- 
self). See State v. George, 53 Ind. 
434; State v. Moore, 136 N. C. 581, 
48 S. E. 573. 



^ Jervis's Archbold, Crim. Pr. & 
PI. 82 ; Rex v. Coogan, 1 Leach, C. 
L. 448; Rex v. Emden, 9 East, 437; 
Com. V. Cunningham. 13 Mass. 245 ; 
Com. V. Bakeman, 105 Mass. 53 : 
Com. V. Wade, 17 Pick. 395; Com. 
V. Tenney, 97 Mass. 50; People v. 
Barrett, 1 Johns. 66; Canter v. Pei)- 
ple, 3S. How. Pr. 91 ; State v. Reed. 
12 Md. 263; Price v. State, 19 Ohio, 
423; Gerard v. People, 4 111. 363; 
Durham v. People, 5 111. 172, 39 
Am. Dec. 407 ; Guedel v. People, 43 
III. 226; State v. Egglesht, 41 Iowa. 
574, 20 Am. Rep. 612; State v. Mur- 
ray, 55 Iowa, 530, 8 N. W. 350; 
State V. Gleason, 56 Iowa, 203, 9 
N. W. 126; State v. Ray, Rice. L. 1, 
33 Am. Dec. 90; State v. Risher, 
1 Rich. L. 219 ; State v. Revels, 44 
N. C. (Busbee, L.) 200; Holt v. 
State, 38 Ga. 187; Hite v. State. 
9 Yerg. 357 ; State v. Keogh. 13 La. 
Ann. 243. See, to same effect, 2 
N. Y. Rev. Stat. 1856; Wharton, 
Crim. PI. & Pr. § 471. 

2 Rex V. Champneys, 2 Moody & 
R. 26; Com. v. Kinney, 2 Va. Cas. 



1192 



EVIDENCE IN CRIMINAL CASES. [CHAP. XII. 



in breaking up a religious meeting, can the defendant be pros- 
ecuted for the two offenses successively ; ^ nor, after a con- 
viction for holding forged papers, under an indictment for 
holding and uttering such paper, can there be a conviction 
for uttering the paper.* But a conviction of larceny on an 
indictment for larceny does not bar a prosecution for the 
burglary with intent to steal, to which the larceny was an 
incident;® nor does an acquittal of larceny bar a prosecution 
for obtaining the same goods by false pretenses or by con- 
spiracy ; ^ nor, at common law, for being an accessory to the 
stealing.' In some instances courts have undertaken to say 
that when a prosecution elects to prosecute a particular phase 
of an offense (r. g., larceny in a case of robbery,' or arson 
in a case where the burning caused killing,^ or one of a series 



139; Smith v. Com. 7 Gratt. 593; 
Price V. People, 9 111. App. 36; 
State V. Stanly, 49 N. C. (4 Jones, 
L.) 290; State v. Fife, 1 Bail. L. 1; 
Statr? V. Slandifer, 5 Port. (Ala.) 
523. See Com. v. Hawkins, 11 
Bush, 603, 1 Am. Crim. Rep. 65. 
Though see Scott v. United States, 
Morris (Iowa) 142; State v. Ross, 
4 Lea. 442; Wharton, Crim. PI. & 
Pr. § 471. 

3 State V. Toztmscnd, 2 Harr. 
(Del.) 543. See Skidmore v. 
Bricker, 77 III. 164. 

* State V. Benham, 7 Conn. 414 ; 
People V. Van Keutren, 5 Park. 
Crim. Rep. 66. See People v. Al- 
len, 1 Park. Crim. Rep 445 ; State 
V. Egglesht. 41 Iowa, 574, 20 Am. 
Rep. 612; Foster v. State. 39 Ala. 
229; Harrison v. State, 36 Ala. 248; 
HirshHeld v. State, 11 Tex. App. 
207; People v. Ward. 15 Wend. 
231; Wharton, Crim. Pr. & PI. §§ 
465 et seq. 



5 See Wilson v. State, 24 Conn. 
57; State v. Warner, 14 Ind. 572. 
But see State v. Lewis, 9 N. C. (2 
Hawks) 98, 11 Am. Dec. 741; Rob- 
erts V. State, 14 Ga. 8, 58 Am. Dec. 
528; State v. De Graff enreid, 9 
Baxt. 287. 

^ Reg. V. Henderson, Car. & M. 
328; State v. Sias, 17 N. H. 558; 
Dominick v. State, 40 .Ala. 680, 91 
Am. Dec. 496. 

As to whether acquittal of lar- 
ceny bars prosecution for forgery 
in same transaction, see note in 4 
L.R.A.(N.S.) 402. 

T State V. Larkin, 49 N. H. 36, 6 
Am. Rep. 456; Foster v. State, 39 
Ala. 229. See Wharton, Crim PI. 
& Pr. § 471. 

^ State V. Lewis, 9 N. C. (2 
Hawks) 98, 11 Am. Dec. 741. See 
Roberts v. State, 14 Ga. 8. 58 Am. 
Dec. 528. 

^ State V. Cooper, 13 N. J. L. 361, 
25 Am. Dec. 490; People v. Smith. 



§ 580] JUDGMENTS AND JUDICIAL RECORDS. 1193 

of municipal negligences occurring on the same day),^° this 
is an adequate determination and satisfaction, and the case, 
on the particular evidence, ought to be pushed no further. 
But whether public justice demands a second prosecution in 
such cases is a question for the executive, who may properly 
step in and prevent an undue accumulation of prosecutions. 
For the court, the test is whether, on the first trial, there could 
have been a conviction of the offense prosecuted in the sec- 
ond." If not, then the rule iie bis idem does not apply. ^^ 

Upon the doctrines above stated, an interesting qualification 
has been proposed. Suppose the prosecution could, if it chose, 
have presented the two offenses in a single count {e. g., assault, 
with assault with intent to wound), but did not do so; thereby, 
as has just been said, virtually, with the whole case before it, 
entering a nolle prosequi on the higher grade. Can a second 
indictment be maintained for such higher grade? The answer 
must be in the negative, ^^ since the prosecution cannot take 
advantage of its own negligence in the imperfect pleading of 
its case, and since such voluntary withdrawal of the aggravat- 
ed grade, sanctioned by a verdict, operates as an acquittal 
of the higher grade. Another reason is the annoyance which 
a contrary rule would capriciously inflict. "The state cannot 

3 N. Y. Week. Dig. 162. See 14 C. 324; Re Thompson, 9 Week. 

Moak, Eng. Rep. 659, 660, note. Rep. 203; United State v. Harmi- 

1° State V. FayetteviUe, 6 N. C. son, 3 Sawy. 556, Fed. Cas. No. 

(2 Murph.) 371. See Fiddler v. 15.308; State v. Smith, 43 Vt. 324; 

State, 7 Humph. 508; Walter v. Com. v. Miller, 5 Dana, 320; State 

Com. 88 Pa. 137, 32 Am. Rep. 429. v. Chaffin, 2 Swan, 493; State v. 

11 Wilco.v V. State, 6 Lea, 571, 40 Stanly, 49 N. C. (4 Jones, L.) 290; 
Am. Rep. 53. Moore v. State, 71 Ala. 307. 

12 See Wharton, Crim PI & Pr. Though see People v. Warren, 1 
§§ 465 et seq. Park. Crim. Rep. 338; Smith v. 

^^ Reg. V. Elrington, 9 Cox, C. C. Com. 7 Gratt. 593; State y. Foster, 

86, 1 Best & S. 689, 10 Week. Rep. 33 Iowa, 525; Prine v. State, 41 

13, 31 L. J. Mag. Cas. N. S. 14, 8 Tex. 300. See Grisham v. State, 19 

Jur. N. S. 97, 5 L. T. N. S. 284, Tex. App. 504; supra, § 464. 
citing Reg. v. Stanton, 5 Cox, C. 



1194 EVIDENCE IX CRIMINAL CASES. [CHAP. XII. 

Split up a crime and prosecute it in parts. A prosecution for 
any part of a single crime" (supposing that at the time the 
entire crime could be prosecuted) "bars any further prosecu- 
tion based upon the whole or a part of the same crime." " 
Should the defendant be acquitted on the first trial, the 
whole case of the second prosecution being before the jury, 
then, as he has been acquitted of the essential ingredients of 
the second case, the second case cannot proceed. ^^ 

§ 581. Successive prosecutions under liquor laws. — 

Prosecutions under the liquor laws afford us several illustra- 
tions to the same eft'ect. A conviction, for instance, of the 
offense of keeping a tippling-house, or of being a common 
seller, does not bar a prosecution for individual sales ; ^ and a 
conviction for nuisance will not bar a prosecution for keeping 
intoxicating liquor.^ But a prosecution for a particular sale 
bars a subsequent prosecution for the same sale, though the 
indictments in the two cases are under distinct statutes or sec- 
tions of statutes.' 

§ 582. Acquittal on plea in abatement. — In criminal 
pleading, a dilatory plea, such as a plea in abatement, binds 
the party making it to the allegations it contains. If he has 
judgment on the plea, in his favor, it is a discharge or an ac- 

^^.TacksoH V. State. 14 Ind. 327, Roberts v. State, 14 Ga. 8, 58 Am. 

328; Drake V. State, M A\a. 42. Dec. 528; Morman v. State, 24 

^5 Wharton Crim. PL & Pr. § 466. Miss. 54. See contra, State v. 

(See cases on question whether a Nutf, 28 Vt. 598; Miller v. State, 

conviction of burglary with intent 3 Ohio St. 475. 
to steal bars larceny.) ^ Com. v. McCauley, 105 Mass. 

1 Wharton, Crim. PI. & Pr. §472; 69. See State v. Inness, 53 Me. 

State V. Coombs, 32 Me. 527; State 536; Com. v. Hardiman, 9 Allen. 

V. Mahh; 35 Me. 225; 5"/.;/^ v. 487; State v. Williams, 30 N. J. 

Inness, 53 Me. 536; Com. v. Cutler, L. 102. 

9 Allen, 486; Com. v. Kennedy. 97 ^ State v. Nittt, 28 Vt. 598; Miller 

Mass. 224; State v. Johnson. 3 R. v. State. 3 Ohio St. 475; Wharton, 

I. 94; Heikes v. Com. 26 Pa. 513; Crim. PI. & Pr. § 472. 



§§ 582a, 582b] JUDGMENTS AND JUDICIAL RECORDS. 1195 

quittal on a preliminary matter only, and such an acquittal 
is inadmissible as a bar to a prosecution for the same offense, 
since, on that trial, the defendant could not have been con- 
victed on the evidence adduced on the second trial. ^ 

§ 582a. On plea of guilty. — Jeopardy frequently at- 
taches as an effectual bar to a subsequent prosecution for the 
same offense, upon proceedings preliminary to a trial, and is 
equally effective as where the trial has been had on the in- 
dictment. Hence, where a defendant is arraigned before a 
court having competent jurisdiction to hear and determine the 
charge, to adjudge the punishment affixed to the offense, and 
the accused enters a plea of guilty, so that nothing further re- 
mains to be done but to enter the plea and adjudge the punish- 
ment, the accused has been put in jeopardy.^ 

§ 582b. Discharge of jury without verdict. — The gen- 
eral rule is that the accused is placed in jeopardy whenever, 
on a valid indictment in a court of competent jurisdiction, 
and before a jury legally impaneled and duly sworn, his trial 
has been fairly entered upon. If, thereafter, the jury is il- 
legally, improperly, or unnecessarily discharged by the court, 
it operates as an acquittal, so that the accused cannot again be 
tried for the same offense, and can plead it in bar of a sub- 
sequent prosecution.^ 

^lUale.F.C. 176; State v.Dres- 11 Nev. 428; Grant v. People, 4 

ser, 54 Me. 569; Com. v. Gale, U Park. Crim. Rep. 527; King v. Pco- 

Gray, 320; Lewis v. State, 1 Head, pie, 5 Hun, 297; Schrieber \. Clapt". 

329. 13 Okla. 215, 74 Pac. 316; Gillespie 

^Boswell V. State, 111 Ind. 47, 11 v. State, 168 Ind. 298, 80 N. E. 82<). 

N. E. 788; People v. Goldstein, 32 See State v. Kinghorn, 56 Wash. 

Cal. 432; Com. v. Goddard, 13 131, 27 L.R.A.(N.S.) 136, 105 Pac. 

Mass. 455. But see People v. Cig- 234; Jones v. State, 97 Ala. 77, 3S 

narale, 110 N. Y. 23, 17 N. E. 135. Am. St. Rep. 150, 12 So. 274; Com. 

1 Teat V. State, 53 Miss. 439, 24 v. Fitzpatrick, 121 Pa. 109, 1 L.R.A. 

Am. Rep. 708; Ex parte Maxwell, 451, 6 Am. St. Rep. 757, 15 Atl. 



1196 



EVIDENCE IN CRIMINAL CASES. [CHAP. XII. 



This general rule is subject to the quahfications, first, that 
where the discharge is made with the consent or through the 
fault of the accused, who, although present, does not object 
to the discharge, a discharge under these conditions is not an 
acquittal ;'^ but it seems that the consent of the accused must 
be shown by the record,' and that silence cannot be construed 
as a consent; ^ second, where there is a manifest necessity for 
the discharge of the jury before a verdict, such as the illness 
or death of the judge or a juror,^ or expiration of the term ^ 
or other necessity, a discharge under these conditions does 
not operate as a bar; but if the discharge is unnecessary or 
erroneous, or the jury unnecessarily separates, the accused 
is in jeopardy, and the discharge of the jury in such cases is 



466, 7 Am. Crim. Rep. 199. See 
also notes in 44 L.R.A. 694, and 14 
L.R.A.(N.S.) 551. 

^Hughes v. State, 35 Ala. 351; 
State V. Coleman, 54 S. C. 282, 22 
S. E. 406; Bell v. State. 103 Ga. 
397, 68 Am. St. Rep. 102, 30 S. E. 
294; Ex parte Winston, 52 Ala. 
419; State v. Falconer, 70 Iowa, 416, 

30 N. W. 655; Com. v. Sholes, 95 
Mass. ■ 554 ; People v. Gardner, 61 
Mich. 307, 29 N. W. 19. See Peo- 
ple V. White, 68 Mich. 648, 37 N. 
W. 34; State v. Davis, 80 N. C. 384; 
Stewart v. State, 15 Ohio St 155 ; 
McFaddcn v. Com. 23 Pa. 12, 62 
Am. Dec. 308; Oliveros v. State, 
120 Ga. 237, 47 S. E. 627, 1 A. & E. 
Ann. Gas. 114; Ingram v. State, 124 
Ga. 448. 52 S. E. 759. But see Cow. 
V. Roby, 12 Pick. 496; Sacra v. Com. 
123 Ky. 578, 96 S. W. 858 ; State v. 
McKinney, 76 Kan. 419, 91 Pac. 
1068; Ohorn v. State, 143 Wis. 249, 

31 L.R.A. (X.S.) 966, 126 N. W. 
737 



3 United States v. Watson, 3 Ben. 
1, Fed. Gas. No. 16,651. 

^ Ex parte Glenn, 111 Fed. 257: 
Allen V. State, 52 Fla. 1, 120 Am. 
St. Rep. 188, 41 So. 593, 10 A. & E. 
Ann. Gas. 1085 ; People ex rel. 
Stabile v. Warden, 139 App. Div. 
488, 124 N. Y. Supp. 341. 

^Rc Scrafford, 21 Kan. 735; 
Nugent v. State, 4 Stew. & P. 
(Ala.) 72, 24 Am. Dec. 746; Lee v. 
State, 26 Ark. 260, 7 Am. Rep. 611 : 
People V. Ross, 85 Gal. 383, 24 Pac. 
789; Ellis v. State, 25 Fla. 702, 6 
So. 768; Rulo v. State, 19 Ind. 298; 
Doles V. State, 97 Ind. 555; State 
V. Taiwan, 59 Iowa, 471, 13 N. \V. 
632. See State v. Reed, 53 Kan. 
767, 42 Am. St. Rep. 322, Z7 Pac. 
174 (where evidence concerning 
sickness of a juror was not pre- 
served in the record, the appellate 
court could not determine either 
that there was not a good cause for 
the discharge, or that the discharge 
should operate as an acquittal) ; 



J 



582b] JUDGMENTS AND JUDICIAL RECORDS. 



1197 



equivalent to an acquittal;''^ third, the discharge of the jury 
for failure to agree upon a verdict; * fourth, the discharge of 
the jury where the indictment or information is so defective 
that a judgment of conviction must be set aside; ^ fifth, a dis- 



State V. Ulrich, 110 Mo. 350, 19 S. 
W. 656; State v. Emery, 59 Vt. 84. 
7 Atl. 129, 7 Am. Crim. Rep. 202. 

^ Gardes v. United States. 30 C. 
C. A. 596, 58 U. S. App. 219, 87 
Fed. 172; United States v. Watson, 
3 Ben. 1, Fed. Cas. No. 16,651 
(there must be such an affirmative 
showing of the circumstances cre- 
ating a plain and manifest necessity 
for discharge of the jury, or, in the 
absence thereof, the discharge will 
be considered equivalent to an ac- 
quittal) ; Armor v. State, 125 Ga. 3, 
53 S. E. 815. 

''State V. Tyson, 138 N. C. 627, 

50 S. E. 456; People v. Smith, 172 
N. Y. 210, 64 N. E. 814; DeBerry 
V. State, 99 Tenn. 207. 42 S. W. 31 ; 
State V. Varnado, 124 La. 711, 50 
So. 661; Lore v. State, 4 Ala. 173: 
Com. V. Olds, 5 Litt. (Ky.) 137; 
State V. Jeff or s, 64 Mo. 376; Stat,' 
V. Tilletson, 52 N. C. (7 Jones, L.) 
114, 75 Am. Dec. 456; Com. v. 
Thompson, 1 Va. Cas. 319. But see 
contra, Re Spier, 12 N. C. (1 Dev. 
L.) 491; State v. McGimsey, 80 N. 
C. 377, 30 Am. Rep. 90, and Wright 
V. Statf. 5 Ind. 290, 61 Am. Dec. 90; 
Re Ascher, 130 Mich. 540, 57 L.R.A. 
806. 90 N. W. 418; Davis v. State, 

51 Neb. 301, 70 N. W. 984 (insanity 
of juror). 

^ State V. Leunig, 42 Ind. 541; 
State V. Spayde, 110 Iowa, 726, 80 
N. W. 1058; State v. Allen. 59 Kan. 
758, 54 Pac. 1060; Up church v. 



State, 36 Tex. Crim. Rep. 624, 44 
L.R.A. 694, 38 S. W. 206; People 
V. Parker, 145 Mich. 488, 108 N. W. 
999; Hopkins v. State, 6 Ga. App. 
403, 65 S. E. 57; Maden v. Emmons, 
83 Ind. 331. But see State v. Hall, 

9 N. J. L. 256. 

^People V. ShotiveU, 27 Cal. 394: 
People V. Cage, 48 Cal. 323. 17 Am. 
Rep. 436; Re Allison, 13 Colo. 525, 

10 L.R.A. 790. 16 Am. St. Rep. 224. 
22 Pac. 820; Thompson v. Com. 15 
K-. L. Rep. 838, 25 S. W. 1059; 
State V. Washington, 90 N. C. 664; 
State V. M'Lemore, 2 Hill, L. 680; 
State V. Waterhouse. Mart. & Y. 
278; Dreyer v. People, 188 111. 40, 
58 L.R.A. 869. 58 N. E. 620, 59 
N. E. 424, 187 U. S. 71, 47 L. ed. 
79, 23 Sup. Ct. Rep. 28, 15 Am. 
Crim. Rep. 253; United States v. 
Jim Lee, 123 Fed. 741 ; Smith v. 
State, 40 Fla. 203, 23 So. 854; Stat.? 
V. Hager, 61 Kan. 504, 48 L.R.A. 
254, 59 Pac. 1080, 15 Am. Crim. 
Rep. 309. But see State v. Klauer, 
70 Kan. 384, 78 Pac. 802 (the dis- 
charge for failure to agree should 
appear of record. Otherwise tho 
legal effect of the discharge of the 
jury is the acquittal of the ac- 
cused) ; People v. Harding, 53 
Mich. 481, 51 Am. Rep. 95, 19 N. 
W. 155; State v. Keerl, 2,2, Mont. 
501, 85 Pac. 862, 213 U. S. 135. 53 
L. ed. 734, 29 Sup. Ct. Rep. 469; 
State V. Trueman, 34 Mont. 249, 85 
Pac. 1024; State v. McMillen, 69 



1198 



EVIDENCE IX CRIMINAL CASES. [CHAP. XII. 



charge upon grounds enumerated in the statute declaring that 
a discharge for such reasons should not be held as an acquit- 
tal.^" 

§ 582c. Acquittal on one of several counts of the in- 
dictment. — The law is well settled that a verdict of guilty 
on one count, with nothing said as to the other counts, is equiv- 
alent to a verdict of not guilty as to such other counts.^ Upon 
principle, therefore, on one indictment against the accused, 
there can be but one judgment and sentence, and that at one 
time, for the offense of which he has been convicted; and a 
sentence, upon the counts of which he has been convicted by 
the jury, definitely and conclusively disposes of the whole in- 
dictment, and operates as an acquittal upon, or a discontinu- 
ance of, any count on which the jury had failed to agree, and 
makes any further proceeding against him on that count im- 
possible.* 



Ohio St. 247, 69 N. E. 433; State 
V. Stephenson, 54 S. C. 234, 32 S. 
E. 305. See State v. Lewis, 31 
Wash. 515, 72 Pac. 121; State v. 
Curry, 74 Kan. 624, 87 Pac. 745; 
State V. Huff, 75 Kan. 585, 12 
L.R.A.(N.S.) 1094, 90 Pac. 279; 
Johnson v. State, 54 Fla. 45, 44 So. 
765; People v. Disperati. 11 Cal. 
App. 469, 105 Pac. 617; People v. 
Ham Tong, 155 Cal. 579, 24 L.R.A. 
(N.S.) 481, 132 Am. St. Rep. 110, 

102 Pac. 263; State v. Barnes, 54 
Wash. 493, 23 L.R.A. (N.S.) 932, 

103 Pac. 792. 

"See supra. § 579; State v. 
Ward, 48 Ark. 36, 3 Am. St. Rep. 
213, 2 S. W. 191 ; State v. Smith, 
88 Iowa, 178, 55 N. W. 198; People 
V. Larson, 68 Cal. 18, 8 Pac. 517; 
State V. Pricbnow, 16 Neb. 131, 19 
N. W. 628; Re Johnson, 5 N. Y. 



City Hall Rec. 103; State v. Eng- 
land, 78 N. C 552. 

1 Selvester v. United States. 170 
U. S. 265, 42 L. ed. 1031, 18 Sup. 
Ct. Rep. 580; Hechter v. State, 94 
Md. 429, 56 L.R.A. 457, 50 Atl. 
1041 ; Dolan v. United States, 69 C. 
C. A. 274, 133 Fed. 453; Jolly v. 
United States, 170 U. S. 402, 42 L. 
ed. 10S5, 18 Sup. Ct. Rep. 624; 
Parish v. State, 130 Ala. 92, 30 So. 
474; Smith v. State, 40 Fla. 203, 23 
So. 854 ; Lamphier v. State, 70 Ind. 
317; State v. Mc Anally, 105 Mo. 
App. Z:i2,, 79 S. W. 990; Stuart v. 
Com. 28 Gratt. 950; Bigcraft v. 
People, 30 Colo. 298, 70 Pac. 417; 
Beaty v. State, 82 Ind. 228; Com. 
V. Hackett, 170 Mass. 194, 48 N. E. 
1087; Wharton, Crim. PI. & Pr. 
§ 740. 

^Selvester v. United States, 170 



§§ 583, 583a] judgments and judicial records. 1199 

§ 583. Acquittal by reason of variance no bar. — Wher- 
ever a description is material, and an acquittal follows from a 
variance in respect to such description, such acquittal, as we 
have seen, is not admissible on the trial of a second indict- 
ment in which the averments are correctly made; but where 
the defendant could have been convicted on the first trial on 
the evidence admissible on the second, proceedings on the sec- 
ond trial are concluded by acquittal or conviction on the first.^ 

The question of former jeopardy is here taken up and dis- 
cussed as though nothing had been heretofore said about it, 
but, as a matter of fact, there is a good deal on various phases 
of the question of former jeopardy in preceding sections. 
§ 576a is the first section entitled Jeopardy but many of the 
sections not so entitled involve that question. But there are 
other sections preceding § 583a specifically entitled Jeopardy. 
§§ 582a, 582b, 582c. The question of effect of discharge of 
jury referred to in § 583a (Note 6) is treated as § 582b. And 
the question of jeopardy is again taken up in §§ 582 et seq. 

§ 583a. Definition. — "J^op^^<^^y»" i^ its common use, is 
exposure to death or injury, and is the equivalent of the word 
"danger:"* The word "jeopardy," as used in the Constitu- 
tions of the various states, providing that no person shall be 
twice in jeopardy for the same offense, is used in its defined, 
technical sense at common law, and is applied only to strictly 
criminal prosecutions initiated by indictment, information, and 
otherwise,^ and it attaches the instant the accused is called up- 

U. S. 267, 42 L. ed. 1031, 18 Sup. United States, 36 C. C. A. 105, 94 

Ct. Rep. 580 (dissenting opinion of Fed. 136. 

Justice Gray). See Ballew v. Unit- ^ Supra, §§ 91 et seq., 578. 

ed States, 160 U. S. 187, 40 L. ed. l Uttited States v. Mays, 1 Idaho, 

388, 16 Sup. Ct. Rep. 263; Putnam 763; State v. Connor, 5 Coldw. 311; 

V. United States, 162 U. S. 687, 40 Ex parte Glenn, 111 Fed. 257; Unit- 

L. ed. 1118, 16 Sup. Ct. Rep. 923; ed States v. Reeves, 38 Fed. 404. 

Hechter v. State, 94 Md. 429, 56 'i Re McClaskey, 2 Okla. 568, 2,7 

L.R.A. 457, 50 Atl. 1041; Peters v. Pac. 854; State ex rel. Scobey v. 



1200 



EVIDENCE IN CRIMINAL CASES. [CHAP. XII. 



on to stand on his defense in a criminal prosecution.' Hence, 
neither a mere arraignment,* nor the bringing of an indict- 
ment,* nor the discharge of a jury, with the consent of the ac- 
cused,^ nor the ilhiess of the judge or a juryman,' nor the in- 
abihty of the jury to agree,^ nor the dismissal of a prosecution 
on an indictment so defective that it could not sustain a judg- 
ment on the verdict,^ nor the setting aside of the judgment on 
the motion of the accused/" is held to be jeopardy. 



Stevens, 103 Ind. 55, 53 Am. Rep. 
482, 2 N. E. 214; Smith v. Bagivell, 
19 Fla. 117, 45 Am. Rep. 12. 

^ Com. V. Clue, 3 Ravvle, 497; 
State V. Nash, 46 La. Ann. 194, 14 
So. 607; State v. Emery, 59 Vt. 84, 
7 Atl. 129, 7 Am. Crim. Rep. 202. 
See State v. Rook, 61 Kan. 382, 49 
L.R.A. 186, 59 Pac. 653. 

* United States v. Riley. 5 Blatchf. 
204, Fed. Cas. No. 16,164. 

^ State V. Nelson. 26 Ind. 366; 
Klein v. State, 157 Ind. 146, 60 N. 
E. 1036. 

^People V. Travels. 77 Cal. 176, 
19 Pac. 268; Mitchell v. State, 42 
Ohio St. 383; Yerger v. State. — 
Tex. Crim. Rep. — , 41 S. W. 621. 
See also notes in 44 L.R..\. 694. 
and 14 L.R.A. (N.S.) 551. 

TLoveit V. State, 33 Fla. 389, 14 
So. 837; People v. Hunckeler, 48 
Cal. 331, 1 Am. Crim. Rep. 507. 
See People v. Higgins. 59 Cal. 357 
(defendant absenting himself to 
make it impossible for the jury to 
render verdict) ; Mixon v. State, 55 
Ala. 129, 28 Am. Rep. 695; Doles 
V. State, 97 Ind. 555 ; Woodzvard v. 
State, 42 Tex. Crim. Rep. 188, 58 
S. W. 135 (illness of a child of a 
juror as creating a necessity). 

^ Ex parte Maxwell, 11 Nev 428; 



People V. Cage, 48 Cal. 323. 17 Am. 
Rep. 436; Ex parte McLaughlin, 41 
Cal. 211, 10 Am. Rep. 272. But see 
contra Com. v. Cook, 6 Serg. & R. 
577, 9 Am. Dec. 465; Williams v. 
Com. 2 Gratt. 567, 44 Am. Dec. 
403; Com. v. Fitzpatrick, 121 Pa, 
109, 1 L.R.A. 451, 6 Am. St. Rep. 
757, 15 Atl. 466, 7 Am. Crim. Rep. 
199. 

^ White V. State, 49 Ala. 344: 
Wilson. V. Com. 3 Bush, 105 ; State 
V. Holton, 88 Minn. 171, 92 N. W. 
541 ; State v. Ruffin, 117 La. 357. 41 
So. 647 ; Jackson v. State, 37 Tex. 
Crim. Rep. 128. 38 S. W. 1002: 
Quinn v. State, — Tex. Crim. Rep. 
— . 65 S. W. 376; Randall \\Com.2A 
Gratt. 644; United States v. Jones, 
31 Fed. 725 ; Robinson v. State, 52 
Ala. 587; Fiuley v. State. 61 Ala. 
201 ; Harp v. State, 59 Ark. 113, 26 
S. W. 714; People v. McNcaly, 17 
Cal. 332 ; People v. Schmidt. 64 Ca.1. 
260, 30 Pac. 814; People v. Clark. 
67 Cal. 99, 7 Pac. 178; Unitei 
States V. Barber, 21 D. C. 456: 
Black V. State, 36 Ga. 447, 91 Am. 
Dec. 772; Conley v. State, 85 Ga. 
348, 11 S. E. 659; Shel^ler v. State, 
114 Ind. 194, 16 N. E. 521 ; Com. v. 
Olds, 5 Litt. (Ky.) 137; Mount v. 
Com. 2 Duv. 93; State v. Williams, 



§ 583b] JUDGMENTS AND JUDICIAL RECORDS. 



1201 



Therefore, from the above decisions it is clear that the mo- 
ment that an accused is placed on trial on his plea, before 
a jury duly impaneled and sworn in a competent tribunal, 
jeopardy at once attaches, and, except for some overwhelming- 
emergency that interferes with the completion of the trial, it 
is such a jeopardy as can be successfully interposed on any 
other trial for the same offense.^^ 

§ 583b. Essentials to sustain the plea. — lo sustain a 
plea of former jeopardy, it must appear : first, that there was 
a former prosecution in the same state for the same offense ; ^ 
second, that some person was in jeopardy on the first prosecu- 



5 Md. 82; Kearney v. State, 48 Md. 
16; Com. v. Curtis, Thatcher, Crim. 
Cas. 202; State v. McGraw, Walk. 
(Miss.) 208; Kohlheivier v. State. 
39 Miss. 548, 77 Am. Dec. 689; 
Munford v. State, 39 Miss. 558; 
State ex rel. Graves v. Prinim, 61 
Mo. 166; People v. Barrett, 1 Johns. 
66; Com. v. Zepp, 3 Clark (Pa.) 
311; Com. v. Bass, 3 Lane. L. Rev. 
278; Simco v. State, 9 Tex. Crim. 
Rep. 338; Timon v. State, 34 Tex. 
Crim. Rep. 363, 30 S. W. 808; Sims 
V. State, 146 Ala. 109, 41 So. 413; 
Jackson V. State, 4 Kan. 150; State 
V. Manning, 168 Mo. 418, 68 S. W. 
341; Barber v. State, 151 Ala. 56, 
43 So. 808; Roberts v. State, 82 
Neb. 651, 118 N. W. 574; State v. 
Keating, 223 Mo. 86, 122 S. W. 699 ; 
People V. Rosenthal, 197 N. Y. 394, 
— L.R.A.(N.S.) — 90 N. E. 991. 
See State v. EUszvorth, 131 N. C. 
77X 92 Am. St. Rep. 790, 42 S. E. 
699; Scott v. State, 110 Ala. 48, 20 
So. 468 (dismissal, by reason of a 
mistake as to which of several 
Crim. Ev. Vol. II.— 76. 



cases against accused was being 
tried, held no jeopardy). 

^^ State V. Patterson, 88 Mo. 88, 
57 Am. Rep. 374 ; People v. Trovers. 
77 Cal. 176, 19 Pac. 268. 

" 1 Chitty, Crim. L. 452 ; Rex v. 
Clark, 1 Brod. & B. 473; 2 Hawk. 
P. C. chap. 36; Reg. v. Drury, 18 
L. J. Mag. Cas. N. S. 189. 3 Car. 
& K. 193, 3 Cox, C. C. 546; United 
States V. Aurandt, 15 N. M. 292, 27 
L.R.A.(N.S.) 1181, 107 Pac. 1064. 

^Reg. V. Bird, 5 Cox, C. C. 20, 
Temple & M. 437, 2 Den. C. C. 94. 
20 L. J. Mag. Cas. N. S. 70, 15 Jur. 
193; State v. Waterman, 87 Iowa, 
255, 54 N. W. 359; Com. v. Roby, 
12 Pick. 496; O'Connor v. State, 28 
Tex. App. 288, 13 S. W. 14; Har- 
rison V. State, 36 Ala. 248; Steiii- 
kuhler V. State, 77 Neb. 323, 109 N. 
W. 395; Peterson v. State, 79 Neb. 
132, 14 L.R.A.(N.S.) 292. 126 Am. 
St. Rep. 651, 112 N. W. 306; State 
V. Ilankins. 136 N. C. 621, 48 S. E. 
593. See Feagin v. State, 139 Ala. 
107, 36 So. 18; Hall v. State, — 
Tex. Crim. Rep. — . 86 S. W. 765. 



1202 



EVIDENCE IN CRIMINAL CASES. [CHAP. XII- 



tion; third, that the parties are identical in the two prosecu- 
tions ; ^ fourth, that the particular offense, on the prosecu- 
tion of which the jeopardy attached, was such an offense as to 
constitute a bar.' Proof of these facts must be affirmatively 
shown by the accused, to show former jeopardy;* and where 



^Emerson v. State, 43 Ark. 372; 
Peachee v. State, 63 Ind. 399. Sec 
Com. V. Roby, 12 Pick. 496; Decker 
V. State, — Tex. Crim. Rep. — , 124 
S. W. 912. 

^Rcg. V. Bird. 5 Co.x. C. C. 11; 
Reg. V. Bird, 5 Cox, C. C. 20, Tem- 
ple & M. 437, 2 Den. C. C. 94, 20 
L. J. Mag. Cas. N. S. 70, 15 Jur. 
193; Faulk v. State, 52 Ala. 415; 
Emerson v. State, 43 Ark. 372 ; 
Daniels v. State. 78 Ga. 98, 6 \m. 
St. Rep. 238; Jenkins v. State, 7% 
Ind. 133; State v. Waterman. 87 
Iowa, 255, 54 N. W. 359; Vozvells 
V. Com. S2, Ky. 193; Rocco v. State. 
37 Miss. 357; State v. Andrezvs, 27 
Mo. 267; State v. Wister, 62 Mo. 
592; People v. Cramer. 5 Park. 
Crim. Rep. 171 ; Price v. United 
States, 15 L.R.A.(N.S.) 1272. 85 C. 
C. A. 247, 156 Fed. 950. 13 A. & E. 
Ann. Cas. 483 ; State v. Day, 5 
Penn. (Del.) 101. 58 Atl. 946; Fews 
V. State, 1 Ga. App. 122, 58 S. E. 
64; State v. Gapen, 17 Ind. App. 
524, 45 N. E. 678, 47 X. E. 25 ; State 
V. Reed, 168 Ind. 588. 81 N. E. 571 ; 
Tudor V. Com. 134 Ky. 186, 119 S. 
W. 816; State v. Hill, 122 La. 711, 
48 So. 160; Watson v. State, 105 
Md. 650, 66 Atl. 635; Warren v. 
State, 79 Neb. 526, 113 N. W. 143; 
State V. Rosa, 72 N. J. L. 462, 62 
Atl. 695 (same act) ; State v. Han- 
kins, 136 N. C. 621, 48 S. E. 593; 
State V. Virgo, 14 N. D. 293, 103 



X. W. 610; Wallace v. State, 57 
Tex. Crim. Rep. 354, 123 S. W. 135 : 
Kellett V. State, 51 Tex. Crim. Rep. 
641, 103 S. W. 882; Clement v. 
State, — Te.x. Crim. Rep. — , 86 S. 
W. 1016. 

4 Rex V. Parry, 7 Car. & P. 836 ; 
Reg. V. Bird, 5 Cox. C. C. 11; Reg. 
V. Bird, 5 Cox, C. C. 20, Temple & 
M. 437, 2 Den. C. C. 94. 20 L. J. 
Mag. Cas. N. S. 70, 15 Jur. 193; 
Oakley v. State, 135 Ala. 29, 33 So. 
693 ; Emerson v. State, 43 Ark. 372 , 
Cooper V. State, 47 Ind. 61 ; Voxi'cU.'s 
V. Cain. 83 Ky. 193 ; Chesapeake &' 
O. R. Co. V. Com. 88 Ky. 368, 11 S. 
W. 87; Cam. v. Daley. 4 Gray, 209 1 
Com. V. Wermouth, 174 Mass. 7\y 
54 N. E. 352; Rocco v. State, o7 
Miss. 357 ; State v. Andrews, 27 Mo. 
267; Cobbey's Anno. Stat. (Xeb.) 
1903, § 2583; State v. Ackerman, 6+ 
X. J. L. 99, 45 Atl. 27; People v. 
Cramer, 5 Park. Crim. Rep. 171 ; 
State V. Ellstvorth, 131 N. C. 773, 
92 Am. St. Rep. 790, 42 S. E. 699, 
Willis V. State, 24 Tex. App. 586. 
6 S. W. 857; Barber v. State, 151 
Ala. 56, 43 So. 808; Storm v. Ter- 
ritory, 12 Ariz. 109, 99 Pac. 275; 
Grayson v. State, 92 Ark. 413, 125 
S. W. 388, 19 A. & E. Ann. Cas. 
929 ; Mance v. State, 5 Ga. App. 22", 
62 S. E. 1053; State v. Polk, 144 
Mo. App. 326, 127 S. W. 933 ; Ter- 
ritory V. West, 14 N. M. 546, 99 
Pac. 343; State v. White, 146 X. C. 



583b] 



JUDGMENTS AND JUDICIAL RECORDS. 



1203 



rebutted by the prosecution, an accused must establish his for- 
mer jeopardy by a preponderance of evidence.^ Where the 
prima facie showing is not rebutted, the presumption of for- 
mer jeopardy becomes conclusive.^ Where the record of the 
former prosecution exists, production of it, either by the orig- 
inal or a certified copy, is the proper evidence to sustain the 
plea; ' and where the plea is interposed in the same cause and 
in the same court, the judge w'ill take judicial notice of sucli 
record.* Where such record cannot be produced, the former 



608. 60 S. E. 505 ; Kilcoyne v. State, 
— Tex. Crim. Rep. — 92 S. W. 36 ; 
Benton v. State, 52 Tex. Crim. Rep. 
422, 107 S. W. 837; Clement v. 
State, — Tex. Crim. Rep. — , 86 S. 
W. 1016; State v. Williams. 43 
Wash. 505, 86 Pac. 847 ; Dockstader 
V. People, 43 Colo. 437, 97 Pac. 254. 

^ State V. Ackerman, 64 N. J. L. 
99. 45 Atl. 27; Willis v. State, 24 
Tex. App. 586, 6 S. W. 857 ; David- 
son V. State, 40 Tex. Crim. Rep. 
285, 49 S. W. 372, 50 S. W. 365; 
State V. Scott, 1 Kan. App. 748, 42 
Pac. 264; State v. Day, 5 Penn. 
(Del.) 101, 58 Atl. 946. But com- 
pare Walker v. State, — Tex. Crim. 
Rep. — , 97 S. W. 1043; Benton v. 
State, 52 Tex. Crim. Rep. 422, 107 
S. W. 837 ; State v. Bevill, 79 Kan. 
524, 131 Am. St. Rep. 345, 100 Pac. 
476, 17 A. & E. Ann. Cas. 753; 
Dockstader v. People, 43 Colo. 437, 
97 Pac. 254. 

^ State V. Niinnelly, 43 Ark. 68. 

■^ Rex V. Bowman, 6 Car. & P. 
101. Contra, Rex v. Parry. 7 Car. 
& P. 836; Moore v. State, 51 Ark. 
130, 10 S. W. 22; Stale v. O'Connor, 
4 Tnd. 299; Marshall v. State, 8 Ind. 
498 (where transcript was used) ; 
Cooper V. State, 47 Ind. 61 ; Farley 



V. State, 57 Ind. 331 ; Wilkinson v. 
State, 59 Ind. 416. 26 Am. Rep. 84, 
2 Am. Crim. Rep. 596; Walter v. 
State, 105 Ind. 589, 5 N. E. 735. 
Compare Dunn v. State, 70 Ind. 47; 
State ex rel. Voorhies v. Edwards, 
42 La. Ann. 414, 7 So. 678; Rocco 
V. State, 27 Miss. 357; Brown v. 
State, 72 Miss. 95, 16 So. 202; Slate 
V. Edwards. 19 Mo. 674; State v. 
Andrews, 27 Mo. 267; State v. Orr, 
64 Mo. 339; Cobbey's Anno. Stat. 
(Neb.) 1903, §2583; Statew. Acker- 
man, 64 N. J. L. 99, 45 At!. 27; 
People V. Benjamin, 2 Park. Crim. 
Rep. 201 ; Robbins v. Budd, 2 Ohio. 
16; Jacobs v. State, 4 Lea, 196; 
State V. Ainszvorth, 11 Vt. 91 ; State 
V. Hud kins, 35 W. Va. 247, 13 S. 
E. 367 ; State v. Wells, 69 Kan. 792, 
77 Pac. 547; State v. Ireland, F5Q 
Miss. 763, 42 So. 797; Benson v. 
State, 53 Tex. Crim. Rep. 254, 10*) 
S. W. 166; Zinn v. State, — Tex. 
Crim. Rep. — , 117 S. W. 136. 

8 State V. Bozven, 16 Kan. 475 ; 
George v. State, 59 Neb. 163, 80 N. 
W. 486; McNisIt v. State, 47 Fla. 
69, 36 So. 176. See Ex parte Vick- 
ery, 51 Fla. 141, 40 So. 77- State 
V. White. 71 Kan. 356, 80 Pac. 580, 
6 A. & E. Ann. Cas. 132; Horner v. 



1204 



EVIDENCE IN CRIMINAL CASES. [CHAP. XII. 



jeopardy can be established by other evidence.^ Any person 
present at the former trial may testify as to the identity of 
the parties, the offense, and what occurred at the trial." 
Where the record of the former prosecution is produced, the 
question of former jeopardy is decided by the judge,^^ but 
where extrinsic evidence is resorted to, the question of former 
jeopardy must be determined by the jury.^^ 



State, 8 Ohio C. C. N. S. 441 ; Riggs 
V. State, — Tex. Crim. Rep. — , 96 
S. W. 25. 

9 See IValter v. State, 105 Ind. 
589, 5 N. E. 735. See State v. 
N eagle, 65 Me. 468 ; People v. Ben- 
javiin, 2 Park. Crim. Rep. 201 ; 
Robbins v. Budd, 2 Ohio, 16. 

^^Dunn V. State, 70 Ind. 47; 
State V. Maxwetl, 51 Iowa, 314, 1 
N. W. 666; State v. Waterman, 87 
Iowa, 255, 54 N. W. 359; Page v. 
Com. 27 Gratt. 954; Reg. v. Bird, 
5 Cox, C. C. 20, Temple & M. 437, 
2 Den. C. C. 94, 20 L. J. Mag. Cas. 
N. S. 70, 15 Jur. 193. 

^"^Reg. V. Bird, 5 Cox, C. C. 20, 
Temple & M. 437, 2 Den. C. C. 94, 
20 L. J. Mag. Cas. N. S. 70, 15 Jur. 
193; State v. Bowen, 16 Kan. 475; 
Brady v. Com. 1 Bibb, 517. See 
State V. Williams, 152 Mo. 115, 75 
Am. St. Rep. 441, 53 S. W. 424; 
State V. Ells-worth. 131 N. C. 773, 
92 Am. St. Rep. 790, 42 S. E. 699 ; 
Hill V. State, 2 Yerg. 248; Hite v. 
State, 9 Yerg. 357; Slaughter v. 
State, 6 Humph. 410; Lanpliere v. 
State, 114 Wis. 193, 89 N. W. 128 ; 
State V. Blodgett, 143 Iowa. 578. 121 
N. W. 685; State v. Foley. 114 La. 
412. 38 So. 402; Watson v. State, 
105 Md. 650, 66 Atl. 635; State v. 
Potter, 125 Mo. App. 465. 102 S. W. 
668; State v. Rosa, 72 N. J. L. 462, 



62 Atl. 696; Territory v. West, 14 
N. M. 546, 99 Pac. 343 ; Horner v. 
State, 8 Ohio C. C. N. S. 441, 28 
Ohio C. C. 568; Morris v. State, 1 
Okla. Crim. Rep. 617, 99 Pac. 760, 
101 Pac. Ill; State v. Dewees, 76 
S. C. 72, 56 S. E. 674, 11 A. & E. 
Ann. Cas. 991; McGinnis v. State, 
17 Wyo. 106, 96 Pac. 525. 

12 Rex V. Parry, 7 Car. & P. 836 ; 
Reg. V. Bird, 5 Cox, C. C. 20, Tem- 
ple & M. 437, 2 Den. C. C. 94, 20 
L. J. Mag. Cas. N. S. 70, 15 Jur. 
193; People v. Hambcrg, 84 Cal. 
468. 24 Pac. 298; Kinkle v. People, 
27 Colo. 459, 62 Pac. 197; Daniels 
V. State, 78 Ga. 98, 6 Am. St. Rep. 
238; Willard v. State, 4 Ind. 407; 
Cooper V. State, 47 Ind. 61 ; Dunn 
V. State, 70 Ind. 47; Chesapeake & 
O. R. Co. V. Com. 88 Ky. 368, 11 
S. W. 87; Raubold v. Com. Ill Ky. 
433, 63 S. W. 781; State ex re!. 
Voorhies v. Edzvards, 42 La. Ann. 
414, 7 So. 678; State v. Williams. 
45 La. Ann. 936. 12 So. 932; Hehi 
V. State, 67 Miss. 562, 7 So. 487; 
State V. Huffman, 136 Mo. 58, 37 
S. W. 797; State v. Hatcher, IZ6 
Mo. 641. 38 S. W. 719; State v. 
Wiseback, 139 Mo. 214, 40 S. W. 
946; State v. Williams, 152 Mo. 115, 
75 Am. St. Rep. 441. 53 S. W. 424 ; 
State V. Laughlin, 168 Mo. 415, 6S 
S. W. 340; Arnold v. State, 38 Neb. 



§ 583c] JUDGMENTS AND JUDICIAL RECORDS. 1205 

§ 583c. In homicide; general rule. — The rule incorpo- 
rated in American jurisprudence is that a person charged with 
homicide in any degree might be convicted, in a proper case, 
of any other degree thereof inchided in the degree charged, 
whether it was a felony or a misdemeanor. Thus, a charge 
of murder in the first degree includes, and will support, a 
conviction for murder in any of its degrees and a conviction 
for manslaughter in any of its degrees, except, of course, 
where the law provides that under a felony charge there can- 
not be conviction of a misdemeanor. 

The minor offense for which a conviction may be had, on 
an indictment for the major offense, must necessarily be in- 
cluded in the major offense, as arising out of the same physi- 
cal act; or the indictment must contain such essential aver- 
ments as to charge the minor offense as included in the major, 
so that a verdict of acquittal or conviction may include both 
degrees. 

There is no dissent from this rule, although it is expressed 
in various phrasings by different courts. Hence the principle 
of former jeopardy deduced is, that when a person is tried for 
the major offense, but convicted of a necessarily included mi- 
nor offense, the conviction operates as an acquittal of all grades 
of offenses higher than the one of which he was convicted, 
and he cannot be again tried for any of the higher grades.^ 

752, 57 N. W. 378; State v. John- 188, 58 S. W. 135; Scott v. State, 

son, 11 Nev. 273; State v. Acker- — Tex. Crim. Rep. — , 68 S. W. 

man, 64 N. J. L. 99, 45 Atl. 27; 680; Cook v. State, 43 Tex. Crim. 

Grant v. People, 4 Park. Crim. Rep Rep. 182, 96 Am. St. Rep. 854, 63 

527; Miller v. State, 3 Ohio St. 476; S. W. 872; People v. Kerm, 8 Utah, 

Hite V. State, 9 Yerg. 357 ; Troy v. 268, 30 Pac. 988 ; State v. Day, 5 

State, 10 Tex. App. 319; Grisham Penn. (Del.) 101, 58 Atl. 946; ^/a/r 

V. State, 19 Tex. App. 504; Munch v. Irwin, 17 S. D. 380, 97 N. W. 7. 

V. State, 25 Tex. App. 30, 7 S. W. Contra, Storm v. Territory, 12 Ari;-. 

341 ; McCullough v. State, — Tex. 109, 99 Pac. 275 ; Doc'kstader v. 

Crim. Rep. — , 34 S. W. 753; Wood- People, 43 Colo. 437, 97 Pac. 254. 

ward V. State, 42 Tex. Crim. Rep. i Post. § 584. 



1206 EVIDENCE IN CRIMINAL CASES. [CHAP. XII. 

§ 583d. In homicide ; conclusiveness of acquittal or con- 
viction on reversal of judgment. — The authorities are all 
in accord on the general rule stated, but the divergence of opin- 
ion is noted upon the various constructions placed by the va- 
rious courts upon the conclusiveness of the judgment of acquit- 
tal or conviction, depending, of course, upon the construction 
given to the varying statutory and constitutional provisions in 
w^hich former jeopardy is expressed. Under the common-law 
procedure in criminal cases, no difficulty is experienced in 
giving the better and the broader construction as to former 
jeopardy. 

But in many states, civil and criminal procedure is regulated 
by Code provisions, and the granting of a new trial under such 
Codes practically nullifies the first proceedings. Again, many 
of the constitutional provisions defining former jeopardy pro- 
vide that, where the judgment of conviction is reversed, the ac- 
cused shall not be deemed to have been in jeopardy. 

In the construction of these prov.sions courts are in direct 
conflict. 

The greater weight of authority, based on the more logical 
construction, holds to the general rule that a verdict convict- 
ing of the minor offense, necessarily included in the major 
charge, is an acquittal of any higher degree, and that, on a 
retrial or reversal of the judgment, the accused cannot again 
be tried for a degree higher than that of which he was first 
convicted. These authorities hold that the judgment set aside, 
or appealed from and reversed, is conclusive on every degree, 
and, on reversal, no higher can be tried than the degree ap- 
pealed from.* 

1 United States. — United States for lower charge, see notes in 5 

V. Houston. 4 Cranch. C. C. 261. L.R.A.(N.S.) 571, and 22 L.R.A. 

Fed. Cas. No. 15,398; Re Bennett. (N.S.) 959. 
84 Fed. 324. Alabama.— Lctt'i.y v. State. 51 .Ala. 

As to right to retry on higher 1 ; Sylvester v. State, 72 Ala. 201 ; 

charge after setting aside verdict Berry v. State, 65 .A.la. 117; State 



583d] 



JUDGMENTS AND JUDICIAL RECORDS. 



1207 



But there is a very respectable line of authorities holding 
that the setting aside of, or the reversal of, the judgment, 



V. Staiidifer, 5 Port. (Ala.) 523: 
Fields V. State, 52 Ala. 348; Bell 
V. State, 48 Ala. 685, 17 Am. Rep. 
40. 

Arkansas. — Johnson v. State, 29 
Ark. 31, 21 Am. Rep. 154, 2 Am. 
Crim. Rep. 430; Allen v. State, 37 
Ark. 433. 

California. — People v. Gilmorc, 4 
Cal. 376, 60 Am. Dec. 620; People 
V. McFarlane. 138 Cal. 481, 61 
L.R.A. 245, 71 Pac. 568, 72 Pac. 
48; People v. Huntington, 8 Cal. 
App. 612, 97 Pac. 760; People v. 
Gordon, 99 Cal. 227, 33 Pac. 901; 
People V. Mnhlner, 115 Cal. 303, 
47 Pac. 128. 

Colorado. — Carson v. People, 4 
Colo. App. 463, 36 Pac. 551. 

England. — Rex v. Jennings, Russ. 
& R. C. C. 388. 

Florida. — Golding v. State, 31 
Fla. 262, 12 So. 525; Ex parte 
Vickery, 51 Fla. 141, 40 So. 77; 
West V. State, 55 Fla. 200, 46 So. 
93; Potsdamere v. State, 17 Fla. 
897; Johnson v. State, 27 Fla. 245, 
9 So. 208. 

Georgia. — Jordan v. State, 22 Ga. 
545. 

Illinois. — Brennan v. People, 15 
111. 511; Barnctt v. People, 54 111. 
325; Sipple v. P^o/)/(?, 10 111. App. 
144; People v. McGinnis, 234 111. 
68. 123 Am. St. Rep. 7Z, 84 N. E. 
687. 

Indiana. — State v. Morrison, 165 
Ind. 461, 75 N. E. 968; Clem v. 
6"faf^, 42 Ind. 420. 13 Am. Rep. 
369. 

Iowa. — State v. Walker, 133 Iowa, 



489, 110 N. W. 925; State v. 
Tweedy, 11 Iowa, 350; State v. 
Helm, 92 Iowa, 540, 61 N. W. 246; 
State V. Smith, 132 Iowa, 645, 109 
N. W. 115. 

Kentucky. — Conner v. Com. 13 
Bush. 714; Williams v. Cow/. 102 
Ky. 381, 43 S. W. 455. 

Louisiana. — State V. Dennison, 31 
La. Ann. 847; State V. Victor, 36 
La. Ann. 978; State v. Hornsby, 8 
Rob. (La.) 583, 41 Am. Dec. 314; 
State V. Joseph, 40 La. Ann. 5, 3 
So. 405. 

See 3"/a/c v. ^jrc/, 31 La. Ann. 
419. 

Massachusetts. — Com. v. Roby, 12 
Pick. 503; Com. v. //^r/j-, 109 Mass. 
348. 

Michigan. — People v. Knapp, 26 
Mich. 112; F^o/'/e? v. Comstock, 55 
Mich. 405, 21 N. W. 384; People 
V. Farrell, 146 Mich. 264, 109 N. 
W. 440; People v. McArron, 121 
Mich. 1, 79 N. W. 944. 

Minnesota. — State v. Lessing, 16 
Minn. 75, Gil. 64. 

Mississippi. — Morris v. State, 8 
Smedes & M. 762; //ar^ v. Stjte, 
25 Miss. 378, 59 Am. Dec. 225; 
Powers V. State, 83 Miss. 691, 36 
So. 6; /?o//.y v. 6"/a/(?, 52 Miss. 391; 
Mixon V. State, 55 Miss. 525. 

Missouri. — (Prior to alteration 
of Constitution) State v. Kattle- 
mann, 35 Mo. 105 ; State v. Brannon, 
55 Mo. 63, 17 Am. Rep. 643; State 
V. Smith, S3 AIo. 139 ; State v. 7?oj.y, 
29 Mo. 32. 

New Jersey. — State v. Cooper, 
13 N. J. L. 361, 25 Am. Dec. 490. 



1208 



EVIDENCE IN CRIMINAL CASES. [CHAP. XII. 



clears the entire record, and places the accused in the same 
position as at the first trial, and, though convicted of a minor 
offense, he can be retried for the highest degree of the major 
offense.^ The latter construction has recently received con- 



New York. — (Prior to Code 
provision) People v. Dozvling, 84 
N. Y. 478; People v. Cignarale, 
110 N. Y. 23, 30, 17 N. E. 135; 
People V. Cox, 67 App. Div. 344, 
72, N. Y. Supp. 774. 

North Dakota. — State v. Barry, 
14 N. D. 316, 103 N. W. 637. 

Oregon. — State v. Sleeves, 29 Or. 
85, 43 Pac. 947. 

Pennsylvania.' — Com. v. Neeley, 
2 Chester Co. Rep. 191 ; Com. v. 
Winters, 1 Pa. Co. Ct. 537. 

See Com v. Hiland, 1 Pa. Co. Ct. 
532; Hilands v. Com. 114 Pa. 372, 
6 Atl. 267; Com. v. Deitrick, 221 
Pa. 7, 70 Atl. 275. 

Tennessee. — Campbell v. State, 9 
Yerg. 333, 30 Am. Dec. 417; 
Slaughter V. State, 6 Humph. 410, 
415. 

See Greer v. State, 3 Baxt. 321 ; 
Lang v. State, 16 Lea, 433, 1 S. W. 
318. 

Texas. — Thomas v. State, 40 Tex. 
39; Flynn v. State, A3 Tex. Crim. 
Rep. 407, 66 S. W. 551; Ex parte 
Moore, 46 Tex. Crim. Rep. 417. 
80 S. W. 620; Jackson v. State, 
55 Tex. Crim. Rep. 79, 131 Am. 
St. Rep. 792, 115 S. W. 262; State 
V. Jones, 13 Tex. 168, 62 Am. Dec. 
550. 

Virginia. — (Before statute) Briggs 
V. Cotn. 82 Va. 554; Stuart v. Com. 
28 Gratt. 950. 

West Virfjinia.— State v. Cross, 
44 W. Va. 315, 29 S. E. 527. 



Washington. — State v. Murphy, 
13 Wash. 229, 43 Pac. 44. 

Wisconsin. — State v. Martin, 30 
Wis. 216, 11 Am. Rep. 567; State 
V. Belden, 33 Wis. 120, 14 Am. Rep. 
748; Rasmussen v. State, 63 Wis. 
1, 22 N. W. 835 (exception as to 
misdemeanors). 

Alaska. — United States v. Owens. 
2 Alaska, 480. 

2 United States. — Trono v. United 
States, 199 U. S. 521. 50 L. ed. 
292, 26 Sup. Ct. Rep. 121, 4 A. & 
E. Ann. Cas. 773. 

Georgia. — Waller v. State, 104 Ga. 
505, 30 S. E. 835; Brantley v. State, 
132 Ga. 573, 22 L.R.A.(N.S.) 959. 
131 Am. St. Rep. 218, 64 S. E. 
676, 16 A. & E. Ann. Cas. 1203. 
217 U. S. 284, 54 L. ed. 768, 30 
Sup. Ct. Rep. 514; Perdue v. State, 
134 Ga. 300, 67 S. E. 810. 

Indiana. — Ex parte Bradley, 48 
Ind. 548. 

Kansas. — State v. Morrison, 67 
Kan. 144, 72 Pac. 554. 

Kentucky. — (Under Code) Com. 
V. Arnold, 83 Ky. 1, 4 Am. St. Rep. 
114, 7 Am. Crim. Rep. 210. 

Missouri. — (Under New Consti- 
tution) State V. Simms, 71 Mo. 
538; State v. Kring, 11 Mo. App. 
92; State v. Anderson. 89 Mo. 312, 
1 S. W. 135; State v. Goddard, 
162 Mo. 198, 62 S. W. 697; State 
V. Billings, 140 Mo. 193, 41 S. W. 
778. 



§ 583d] JUDGMENTS AND JUDICIAL RECORDS. 



1209 



siderable support from the case of Trono v. United 
States.' 



Nebraska. — Bohanan v. State, 18 
Neb. 57, 53 Am. Rep. 791, 24 N. 
W. 390, 6 Am. Crim. Rep. 487. 

Nevada. — Re Somers, 31 Nev. 
531, 24 L.R.A.(N.S.) 504, 135 Am. 
St. Rep. 700, 103 Pac. 1073. 

New York. — People v. Wheeler, 
79 App. Div. 396, 79 N. Y. Supp. 
454. 

North Carolina. — State v. Groves, 
121 N. C. 563, 28 S. E. 262; State 
V. Matthews, 142 N. C. 621, 55 S. 
E. 342. 

Ohio. — State v. Behimer, 20 Ohio 
St. 572. 

Oklahoma. — Turner V. Territory, 
15 Okla. 557, 82 Pac. 650. 

South Carolina. — State v. Gillis, 
73 S. C. 318, 5 L.R.A.(N.S.) 571, 
114 Am. St. Rep. 95, 53 S. E. 487, 
6 A. & E. Ann. Cas. 993. 

Vi^h— State v. Kessler, 15 Utah, 
142, 62 Am. St. Rep. 911, 49 Pac. 
293. 

Vermont. — State v. Bradley, 67 
Vt. 465, 32 Atl. 238. 

Virginia. — Forbes v. Com. 90 Va. 
550, 19 S. E. 164; Benton v. Com. 
91 Va. 782, 21 S. E. 495; Haivley 
V. Com. 75 Va. 847. 

^ Trono v. United States, 199 U. 
S. 521, 50 L. ed. 292, 26 Sup. Ct. 
Rep. 121, 4 A. & E. Ann. Cas. 
773; Pendleton v. United States, 
216 U. S. 305, 54 L. ed. 491, 30 
Sup. Ct. Rep. 315. 

In the Trono Case, Justice 
Harlan, Justice McKenna, Justice 
White, and the Chief Justice dis- 
sented. The case has been sub- 
jected to serious criticism, but rep- 



resents the position taken by the 
Supreme Court of the United 
States upon the effect of a reversal 
of a judgment of conviction, hold- 
ing that it practically clears the 
record. 

In opposition to this view, in the 
case of People v. Gordon, 99 Cal. 
227, 33 Pac. 901, in disposing of the 
view that the granting of a new 
trial, upon the application of the 
accused, places him in the same 
position in a criminal case as 
though no trial had been had, the 
court says : "But if it was meant 
by the section to go further, and 
provide that when the indictment 
charges two or more offenses, and 
on the first trial the accused is 
acquitted of one of the offenses 
charged, and convicted of another, 
the granting of a new trial of the 
offense of which he was convicted 
places him in the same position as 
to the offense of which he was 
acquitted as if no trial had been 
had, and thus subjects him to be 
tried again for the last-named of- 
fense, — then the section is clearly 
in conflict with the provision of 
the Constitution above quoted, and 
for that reason is void." 

The position taken by the Su- 
preme court of California in the 
case of People v. Gordon, supra, 
is impregnable. The legislative 
power could not have intended, in 
providing for new trials in criminal 
cases, to have contemplated a sub- 
stantive change in the Constitution, 
by making the availability of the 



1210 



EVIDENCE IN CRIMINAL CASES. [CHAP. XII. 



§ 583e. Inclusion of degrees in homicide. — Under the 
doctrine accepted as a part of our jurisprudence, that the high- 
est offense inchided all of the lesser degrees, so long as the 
judgment of conviction of any degree remains final, it can be 
plead in bar of a subsequent prosecution for the same offense 
in any degree. This is necessarily based upon the fact that, 
on a prosecution for homicide in the first degree, the accused 
can be convicted of the first or any lesser included degree, be- 
cause all the issues as to all the degrees are determined in 
the one prosecution.^ Hence, on a charge of homicide, there 



constitutional safeguard against 
former jeopardy depend upon the 
success of the accused in being 
granted or refused a new trial, or 
in obtaining a reversal of the 
judgment of conviction. 

The substantive reasons urged, 
as giving conclusive character to 
judgments in civ'l cases, are that 
no man shall be twice vexed for 
the same cause, and that it is to 
the interest of the public that there 
shall be an end to litigation. 

If these reasons possess a mold- 
ing and controlling force in civil 
proceedings, there exists the great- 
est necessity for the strictest appli- 
cation of them to criminal pro- 
ceedings. Surely, no man should 
be twice placed in danger of his 
life and liberty, and no community 
should be twice disturbed by the 
enforcement of its penal laws for 
the same offense, upon the same 
person. Yet this is the effect, and 
those states that hold that a new 
trial, or the reversal of the judg- 
ment by the appellate court, opens 
the entire proceeding for a re-ex- 
amination and a retrial, seem under 
an obsession to the Code proced- 



ure, as governing all issues, both 
civil and criminal, that could never 
have been within the contemplation 
of the reformed procedure. But 
where the judgment appealed from 
is considered as an acquittal, and 
presenting the single issue of a 
legal conviction of the degree im- 
posed, the matter is simplified, and 
the constitutional safeguard upheld 
without subjecting the accused to a 
gaming chance, or inviting him to 
avail himself of appellate procedure 
at his own peril. See United States 
v. Harding. 1 Wall. Jr. 127, Fed. 
Cas. No. 15,301. 

1 IVatson v. State. 116 Ga. 607, 21 
L.R.A.(N.S.) 1, 43 S. E. 32; Sta'c 
V. Phinnev. 13 Idaho, 307, 12 L.R..A. 
(N.S.) 935, 89 Pac. 634, 12 A. & E. 
Ann. Cas. 1079; People v. Dolan. 
9 Cal. 576; Thomas v. State, 121 
Ga. 331, 49 S. E. 273; Goff v. Prime. 
26 Ind. 196; People v. Connors. 13 
Misc. 582, 35 N. Y. Supp. 472; 
State V. Howard, 33 Wash. 250. 74 
Pac. 382; State v. Htiber. 8 Kan. 
447 ; Smith v. State, 142 Ala. 14. 30 
So. 329 : Green v. State. 43 Fla. 556. 
30 So. 656; Lewis v. State. 42 Fla. 
253, 28 So. 397; State v. Brinte. 4 



§ 583e] JUDGMENTS AND JUDICIAL RECORDS. 1211 

may be a conviction of murder in the second degree,^ or of 



Penn. (Del.) 551, 58 Atl. 258; Stat^ 
V. Buchanan, Houst. Crim. Rep. 
(Del.) 79; State v. Honey. — Del 
— , 65 Atl. 764; State v. U::zo, — 
Del. — , 65 Atl. 775 ; Craft v. State. 
3 Kan. 450; Buckner v. Com. 14 
Bush, 601 ; Com. v. Couch, 32 Ky. 
L. Rep. 638, 16 L.R.A.(N.S.) 327, 
106 S. W. 830; State v. Grant, 7 Or. 
414; McPherson v. State. 29 Ark. 
225 ; Garvey's Case, 7 Colo. 384, 49 
Am. Rep. 358, 3 Pac. 903, 4 Am. 
Crim. Rep. 254 ; Keefe v. People, 40 
N. Y. 348; Smith v. State, 103 Ala. 
4, 15 So. 843, 9 Am. Crim. Rep. 
320; Gregory v. State, 148 Ala. 566, 
42 So. 829; Livingston v. Co;;j. 14 
Gratt. 592; Burge v. United Stater, 
26 App. D. C. 524 ; State v. Moore, 
129 Iowa, 514, 106 N. W. 16; Unit- 
ed States V. Harding, 1 Wall. Jr. 
127. Fed. Cas. No. 15.301. 

As to effect of conviction of 
lower degree in prosecution for 
homicide, as acquittal of higher de- 
gree, see note in 21 L.R.A.(N.S.) 
20. 

^Potsdamer v. State, 17 Fla. 896; 
State V. Brinte, 4 Penn. (Del.) 551. 
58 Atl. 258; State v. Hnber. 8 Kan. 
447; Craft v. State, 3 Kan. 450; 
Territory v. McGinnis. 10 N. M. 
269. 61 Pac. 208; Giskic v. State, 
71 Wis. 612, 38 N. W. 334; 5-fa.V 
V. Parnell, 206 Mo. 723. 105 S. W. 
742 ; Weighorst v. State. 7 Md. 442 ; 
Com. V. //rr/j, 109 Mass. 348; State 
V. F^^/^y. 194 Mo. 300, 3 L.R.A. 
(N.S.) 351, 112 Am. St. Rep. 511, 
92 S. W. 663 ; Keefe v. Pco/'/<', 40 
N. Y. 348; Morrison v. 5/a/<', 42 
Fla. 149, 28 So. 97; Riptoe v. State, 



— Tex. Crim. Rep. — , 42 S. W. 
381 ; State v. Matthews, 142 N. C. 
621, 55 S. E. 342; People v. De La 
Cour Soto, 63 Cal. 165 ; People v. 
Thompson, 41 N. Y. 1 ; Burge v. 
United States, 26 App. D. C. 524; 
People V. Doe, 1 Mich. 451; State 
V. Schieller, 130 Mo. 510, Z2 S. W. 
976; State v. Bobbitt, 215 Mo. 10, 
114 S. W. 511; State v. Talmagc. 
107 Mo. 543, 17 S. W. 990; State v. 
Frazier, 137 Mo. 317, 38 S. W. 913; 
State V. Moxley, 115 Mo. 644, 22 S. 
W. 575. 

^ Henry v. State, ZZ Ala 389; 
Jackson v. State, 77 Ala. 18; Linne- 
han V. 5/a^^, 120 Ala. 293, 25 So. 6 ; 
People V. Muhlner, 115 Cal. 303, 47 
Pac. 128 ; People v. Borrego, 7 Cal. 
App. 613, 95 Pac. 381; Howard v. 
P^o/-/^, 185 111. 552, 57 N. E. 442; 
State V. Smith, 132 Iowa, 645, 109 
N. W. 115; State v. Moore. 129 
Iowa, 514, 106 N. W. 16; Plummer 
V. State, 6 Mo. 231 ; Jones v. Ter- 
ritory, 4 Okla. 45, 43 Pac. 1072; 
United States v. Meagher, 37 Fed. 
875 ; United States v. Leonard, 18 
Blatchf. 187, 2 Fed. 669; Mack-al- 
ley's Case, 9 Coke, 67b ; Salisbury':: 
Case. 1 Plowd. 101 ; United States 
V. Carr, 1 Woods, 480, Fed. Cas. 
No. 14,732; Craft v. State, 3 Kan. 
450; State v. //w^f-r, 8 Kan. 447; 
Smith V. S'/a/^, 142 Ala. 14, 39 So. 
329; McPherson v. State. 29 Ark. 
225; People v. Prarw^, 118 Cal. 154. 
50 Pac. 376; Garvey's Case, 7 Colo. 
384, 49 Am. Rep. 358. 3 Pac. 903. 
4 Am. Crim. Rep. 254; Brotvn v. 
State. 31 Fla. 207. 12 So. 640: 
Reynolds v. State, 1 Ga. 222; State 



1212 



EVIDENCE IN CRIMINAL CASES. [CHAP. XII. 



manslaughter,^ voluntary * or involuntary,^ or of assault with 
intent to kill,^ or of assault and battery,' provided, however, 



V. Alcorn, 7 Idaho, 599, 97 Am. St. 
Rep. 252, 64 Pac. 1014; Bariiett v. 
State, 100 Ind. 171 ; Powers v. 
State, 87 Ind. 144; Stafe v. Salter, 
48 La. Ann. 197, 19 So. 265 ; People 
V. McArron, 121 Mich. 1, 79 N. W. 
944; King v. State, 5 How. (Miss.) 
730; State v. Ludwig, 70 Mo. 412; 
Keefe v. People, 40 N. Y. 348; 
White V. Territory, 3 Wash. Terr. 
397, 19 Pac. 37 ; McCoy v. State, 40 
Fla. 494, 24 So. 485 ; State v. Sea- 
borne, 8 Rob. (La.) 518; People v. 
McDonnell, 92 N. Y. 657; State v. 
Behimer, 20 Ohio St. 572; State v. 
Halliday, 112 La. 846, 36 So. 753; 
Watson V. State, 5 Mo. 497; State 
V. Gordon, 3 Iowa, 410; 7^03; v. 
i'faf?, 2 Kan. 405 ; United States v. 
Densmorc, 12 N. M. 99, 75 Pac. 31 ; 
Re Alcorn, 7 Idaho, 101, 60 Pac. 
561; Earll v. People, 7Z III. 329; 
Howard v. P^o/'/e, 185 111. 552, 57 
N. E. 442; State v. Noble, 1 Ohio 
Dec. Reprint, 1 ; Birch v. State, 1 
Ohio Dec. Reprint, 453 ; People v. 
Butler, 3 Park. Crim. Rep. 377; 
State V. Griffin, 34 La. Ann. 37 ; 
Pac/^<?r V. People, 8 Colo. 361, 8 Pac. 
564; Nelson v. State, 10 Humph. 
518. 

4 Linnehan v. ^'/a/^, 120 Ala. 293, 
25 So. 6; Allison v. 5fa/^, 74 Ark. 
444, 86 S. W. 409; Brown v. State. 
31 Fla. 207, 12 So. 640; Thomas v. 
State, 121 Ga. 331. 49 S. E. 273; 
Powers V. State, 87 Ind. 144; Com. 
V. Couch, 32 Ky. L. Rep. 638, 16 
L.R.A.(N.S.) 327, 106 S. W. 830; 
Buckner v. Govt. 14 Bush, 601 ; Con- 
ner V. Com. 13 Bush, 714; Slaughter 



V. State, 6 Humph. 410; Jones v. 
Territory, 4 Okla. 45, 43 Pac. 1072 ; 
5"<fl?^ V. Ludwig, 70 Mo. 412; State 
V. Gaffney, Rice, L. 431 ; Henry v. 
5/a/^, 33 Ala. 389, overruling 5o& v. 
State, 29 Ala. 20; State v. Stephen, 

15 Ala. 534. 

5 Conner v. Com. 13 Bush, 714 
Buckner v. Com. 14 Bush, 601 
Co;;;, v. Couch, 32 Ky. L. Rep. 638 

16 L.R.A.(N.S.) 327, 106 S. W 
830; Powers v. State, 87 Ind. 144 
Thomas v. State, 121 Ga. 331. 49 5 
E. 273; Wood v. Com. 9 Ky. L 
Rep. 872, 7 S. W. 391; People v 
P^arn^, 118 Cal. 154, 50 Pac. 376 
Bush V. Coin. 78 Ky. 268; Bradshazv 
V. State, — Tex. Crim. Rep. — , 50 
S. W. 359; Thomas v. State, 72, 
Miss. 46, 19 So. 195; Lucas v. ^itate, 
71 Miss. 471, 14 So. 537; People v. 
Huntington, 8 Cal. App. 612, 97 Pac. 
760 ; Pigg v. State, 145 Ind. 560, 43 
N. E. 309; McNevins v. People, 61 
Barb. 307; Brown v. State, 28 Ga. 
199; Bruner v. 5/af^, 58 Ind. 159; 
Adams v. State, 65 Ind. 565 ; Over- 
by V. 6"/a?^, 115 Ga. 240. 41 S. E. 
609; Com. v. Gable, 7 Serg. & R. 
423; Walters v. Com. 44 Pa. 135; 
H Hands v. Com. 114 Pa. 372, 6 Atl. 
267, affirming 1 Pa. Co. Ct. 532; 
Presley v. State, 30 Tex. 160 ; Ishatn 
V. 5fa/<?, 38 Ala. 213. 

^Letcher v. 5;af^, 145 Ala. 669, 
39 So. 922; Thomas v. State, 121 
Ga. 331, 49 S. E. 273; Davis v. 
State. 45 Ark. 464; Thomas v. State, 
125 Ala. 45. 27 So. 920; Smith v. 
State, 126 Ga. 544, 55 S. E. 475; 
Peterson v. State, 12 Tex. App. 



583e] 



JUDGMENTS AND JUDICIAL RECORDS. 



1213 



that the indictment necessarily covers the included degrees in 
the general charge of the greater, or the averments of the in- 
dictment describing the commission of the offense contain al- 



650; Stapp v. State, 3 Tex. App. 
138; State v. Parker, 66 Iowa. 586, 
24 N. W. 225, 5 Am. Crim. Rep. 
339; Ex parte Curnow, 21 Nev. ZZ, 
24 Pac. 430; Pyke v. State, 47 Fla. 
93, 36 So. 577; Moody v. State, 54 
Ga. 660; People v. Sanchez, 24 Cat. 
17; Napper v. State, 123 Ga. 571, 51 
S. E. 592; Scott v. State, 60 Miss. 
268; People v. Husou. 114 App. 
Div. 693, 94 N. Y. Supp. 1081. 

7 Thomas v. State, 121 Ga. 331, 49 
S. E. 273; Com. v. Drum, 19 Pick. 
479; State v. Scott, 24 Vt. 127; 
Logan v. United States, 144 U. S. 
307, 36 L. ed, 444, 12 Sup. Ct. Rep. 
617; Moody v. State, 54 Ga. 660: 
Bush V. Com. 78 Ky. 268; State v. 
Powell, 1 Ohio Dec. Reprint, 38; 
State V. Coleman, 5 Port. (Ala.) 
32; 5"^a<(? v. Barrington, 198 Mo. 
23, 95 S. W. 235; Gillespie v. State, 
9 Ind. 380, overruling State v. /v^rw- 
ned3», 7 Blackf. 233; Mapula v. T^??-- 
nfory, 9 Ariz. 199, 80 Pac. 389: 
State V. O'Kane, 23 Kan. 244; 5^a(i 
V. State, 25 Tex. App. 346, 8 S. W. 
278; Green v. State, 8 Tex. App. 
71 ; Lang v. State, 16 Lea, 433, 1 
S. W. 318; Housman v. Com. 128 
Ky. 818, 110 S. W. 236; Reed v. 
State, 141 Ind. 116, 40 N. E. 525; 
Wright V. 5"/a<^, 5 Ind. 527; 5"co.'^ 
V. State, 60 Miss. 268; People v. 
Connors. 13 Misc. 582, 35 N. Y. 
Supp. 472; People v. McDonald, 
159 N. Y. 309, 54 N. E. 46; Com. 
V. Adams, 2 Pa. Super. Ct. 46; 
Burns v. People, 1 Park. Crim. Rep. 
182; F^o/)/^ V. Adams, 52 Mich. 24, 



17 N. W. 226; Baysinger v. Ter- 
ritory, 15 Okla. 386, 82 Pac. 728; 
State V. Thomas, 65 N. J. L. 598, 48 
Atl. 1007, 13 Am. Crim. Rep. 432. 
reversing 64 N. J. L. 532, 45 Atl. 
913; State v. Scaduto, 74 N. J. L 
289, 65 Atl. 908 ; People v. Schiazn, 
96 App. Div. 479, 89 N. Y. Supp. 
564; Presley v. 5"/a<<?, 30 Tex. 160; 
Reg. V. Greenzvood, 7 Cox, C. C. 
404; State v. Gr^^r, 11 Wash. 244, 
39 Pac. 874; State v. Phinney, U 
Idaho, 307, 12 L.R.A.(N.S.) 935, 89 
Pac. 634, 12 A. & E. Ann. Cas. 
1079; State v. Matthczvs. 142 N. C. 
621, 55 S. E. 342; Lane v. Com. 59 
Pa. 371; State v. Howard, 33 Wash. 
250, 74 Pac. 382; State v. Fleet- 
wood. — Del. — , 65 Atl. 772; State 
v. Babbitt, 215 Mo. 10, 114 S. W. 
511; People v. Huntington. 138 Cal. 
261, 70 Pac. 284; Morrisett v. Peo- 
ple. 21 How. Pr. 203; State v. JSi-r- 
toch. 112 Iowa, 195, 83 N. W. 967; 
E.r parte Dela, 25 Nev. 346, 83 Am. 
St. Rep. 603, 60 Pac. 217, 15 Am. 
Crim. Rep. 382 ; State v. Belyca, 9 
N. D. 353, 83 N. W. 1; People v. 
McDonald, 49 Hun, 67, 1 N. Y. 
Supp. 703 ; Goff v. Prime, 26 Ind. 
196; Brown v. State, 28 Ga. 199; 
State V. Ross, 29 Mo. 32 ; Territory 
V. McGinnis, 10 N. M. 269, 61 Pac. 
208 ; Jones v. State, 130 Ga. 274, 60 
S. E. 840; State v. Burbage. 51 S. 
C. 284, 28 S. E. 937 ; State v. Cole- 
man, 5 Port. (Ala.) 32; State v. 
Robinson, 12 Wash. 491, 41 Pac. 
884; State v. Robinson, 12 Wash. 
349, 41 Pac. 51, 902. 



1214 



EVIDENCE IX CRIMINAL CASES. [CHAP. XII. 



legations that are essential to constitute the included degrees ; * 
and, under such indictment, the prosecution is entitled to in- 
troduce any relevant evidence which would be admissible under 
an indictment specifically charging the included degrees,' and, 
in submitting a charge of homicide to the jury, the trial court 
should explain to the jury that it has the right to convict the 
accused of any of the included degrees of the offense charged, 
or to acquit, as they may determine upon a full consideration 
of the evidence. ^° 



^ Scott V. State, 60 Miss. 268; 
Housman v. Com. 128 Ky. 818, 110 
S. W. 236; Buckner v. Com. 14 
Bush, 603; supra, § 111, chap. 3; 
Conner v. Com. 13 Bush, 722; su- 
pra, § 111, chap. 3; State v. Thom- 
as, 65 N. J. L. 598. 48 Atl. 1007, 13 
Am. Crini. Rep. 432, reversing 64 
N. J. L. 532, 45 Atl. 913; JVall v. 
State, 18 Tex. 683, 70 Am. Dec. 
302; White v. State, 16 Tex. 206; 
Com. V. Desmarteau, 16 Graj-, 1 ; 
Tcnorio v. Territory, 1 N. M. 279; 
State V. Douglass, 41 W. Ya. 537, 
23 S. E. 724; State v. Cole, 132 N. 
C. 1069, 44 S. E. 391 ; State v. Lcs- 
sing, 16 Minn. 75, Gil. 64; Allison 
V. State, 74 Ark. 444, 86 S. ^\■. 409. 

9 State V. Salter, 48 La. Ann. 197, 
19 So. 265; Gregory v. State, 148 
Ala. 566, 42 So. 829 ; Keefe v. Peo- 
ple, 40 N. Y. 348; Allison v. State, 
74 Ark. 444, 86 S. W. 409; State 
V. Mahly, 68 Mo. 315, 3 Am. Crini 
Rep. 183 ; State v. Stoeckli, 71 Mo. 
559; Virgil v. State, 63 Miss. 317; 
People V. Connors, 13 Misc. 582, 35 
N. Y. Supp. 472; State v. Millain, 
3 Nev. 409 ; McNevins v. People. 61 
Barb. 307 ; Russell v. State. 66 Neb. 
497, 92 N. W. 751 ; People v. Muhl- 
ner, 115 Cal. 303, 47 Pac. 128; State 



V. Phinney, 13 Idaho, 307, 12 L.R.A. 
(N.S.) 935, 89 Pac. 634, 12 A. & E. 
Ann. Cas. 1079; State v. Todd, 194 
Mo. Z77, 92 S. W. 674; People v. 
Borrego, 7 Cal. App. 613. 95 Pac. 
381 ; Moore v. People, 26 Colo. 213, 
57 Pac. 857 ; Brown v. State, 31 Fla. 
207, 12 So. 640; Murphy v. People, 
9 Colo. 435, 13 Pac. 528; People v. 
Huntington. 8 Cal. App. 612, 97 
Pac. 760; State v. West, 202 Mo. 
128, 100 S. W. 478; State v. Schiel- 
ler, 130 Mo. 510, 32 S. W. 970; 
State V. Sebastian, 215 Mo. 58, 114 
S. W. 522; Stone v. State, 57 Fin. 
28, 48 So. 996; Morrison v. State. 
42 Fla. 149, 28 So. 97; Castlin v. 
State, — Tex. Crim. Rep. — , 57 S. 
W. 827; Taylor v. State, 72 Ark 
613, 82 S. W. 495; Clemmons v. 
State, 43 Fla. 200, 30 So. 699; Ful- 
ler V. State, 30 Tex. App. 559, 17 
S. W. 1108; McCoy v. State, 40 Fhi. 
494, 24 So. 485; State v. Bobbit*, 
215 Mo. 10, 114 S. W. 511; Casey 
V. State, 49 Tex. Crim. Rep. 174, 90 
S. W. 1018. 

10 Craft V. State, 3 Kan. 450; Ter- 
ritory V. Gonzales, 11 N. M. 301, 68 
Pac. 925; State v. Todd, 194 Mo. 
377, 92 S. W. 674; Stone v. State. 
57 Fla. 28, 48 So. 996; State v. Tai- 



§ 584] 



JUDGMENTS AND JUDICIAL RECORDS. 



1215 



§ 584. Acquittal of the minor offense as a bar to a sub- 
sequent indictment. — Wherever a minor offense is in- 
closed in a major, then, if the two be contained in the same 
count, either an acquittal or conviction of the minor is admis- 
sible as a bar to a subsequent indictment for the major offense. '^ 
On an indictment for murder, as we have shown,^ if the jury 
convicts of manslaughter this is a virtual acquittal of murder, 
and the case cannot be retried on an indictment for murder.* 



mage, 107 Mo. 543, 17 S. W. 990; 
State V. Sloan, A7 Mo. 604; Haddix 
V 'itate, 76 Neb. 369, 107 N. W. 
781; State v. Bobbiti, 215 Mo. 10, 
114 S. W. 511; People v. DeGarmo, 
73 App. Div. 46, 76 N. Y. Supp. 
477; State v. Frazier, 137 Mo. 317. 
38 S. W. 913; State v. Parks, ll.S 
La. 765, 40 So. 39 ; State v. Under- 
wood, 35 Wash. 558, 77 Pac. 863; 
AUison V. State, 74 Ark. 444. 86 S. 
VV. 409; Boulden v. State, 102 Ala. 
78, 15 So. 341; Nabors v. State, 120 
Ala. 323, 25 So. 529; State v. Hicks, 
113 La. 779, 37 So. 753; Giskic v. 
State, 71 Wis. 612, 38 N. W. 334; 
Taylor v. State, 72 Ark. 613, 82 S. 
W. 495 ; Pigg v. State, 145 Ind. 560, 
43 N. E. 309; Goodman v. State, 
122 Ga. Ill, 49 S. E. 922; McDuffic 
V. State, 121 Ga. 580, 49 S. E. 708; 
Clemons v. State, 48 Fla. 9, 2i7 So. 
647; Parker v. State, 22 Tex. App. 
105, 3 S. W. 100; State v. Tweedy, 
11 Iowa, 350. 

1 Reg. V. Oliver. 8 Cox, C. C. 384, 
.Kell. C. C. 287. 30 L. J. Mag. Ca.s. 
X. S. 12, 6 Jiir. N. S. 1214, 3 L. T. 
X. S. 311, 9 Week. Rep. 60; Reg. 
V. Ycadon, 9 Cox, C. C. 91, Leigh 
& C. C. C. 81, 31 L. J. Mag. Cas. 
N. S. 70, 7 Jur. N. S. 1128, 5 L. T. 
N. S. 329, 10 Week. Rep. 64; Reg. 



V. Bird, Temple & M. 437, 2 Den. 
C. C. 94, 5 Cox, C. C. 20, 20 L. T. 
Mag. Cas. N. S. 70, 15 Jur. 193, 5 
Cox, C. C. 11; State v. Waters, 39 
Me. 54; State v. Dearborn, 54 Mc. 
442; Com. v. Griffin. 21 Pick. 523; 
Stewart v. State, 5 Ohio. 242; State 
V. IViles, 26 Minn. 381, 4 N. W. 
615, 2 Am. Crim. Rep. 621 ; s. c. 9 
Rep. 472; Swinney v. State, S 
Smedes & M. 576; State v. Chaffiu. 
2 Swan, 493 ; Miller v. State, 58 Ga. 
200; State v. De Laney, 28 La. Ann. 
434; Cameron v. State, 13 .^rk. 712; 
State V. Taylor, 3 Or. 10. See su- 
pra, §§ 130, 144; Wharton, Crim. 
PI. & Pr. § 465. 

2 Supra, § 583d. 

3 2 Hale, P. C. 246 ; 1 Post. C L. 
329; Livingston v. Com. 14 Gratt. 
592; Brennan v. People, 15 111. 511; 
Barnett v. People, 54 111. 325 ; Jor- 
dan V. State, 22 Ga. 545 ; Hurt v. 
State, 25 Miss. 378, 59 Am. Dec. 
225; State v. Ross, 29 Mo. 32; 
Slaughter v. State, 6 Humph. 410; 
State V. Lessing, 16 Minn. 80, Gil. 
64; State v. Byrd, 31 La. Ann. 419; 
State V. Dennison, 31 La. -Ann. 847: 
State V. Martin, 30 Wis. 216, 11 Am. 
Rep. 567; People v. Gilmore, 4 Cai. 
376, 60 Am. Dec. 620. See, how- 
ever, United States v, Harding, 1 



1216 EVIDENCE IN CRIMINAL CASES. [CHAP. XII. 

A conviction, also, of murder in the second degree is a bar to 
a prosecution for murder in the first degree.* On the same 
reasoning, a defendant convicted of an assault on an indict- 
ment for an assault and battery, or for an assault with intent 
to kill, cannot afterwards be tried for the assault and bat- 
tery, or the assault with intent to kill; * and a defendant con- 
victed of an assault with intent to ravish, under an indict- 
ment for rape, cannot be subsequently tried for the rape.^ 
And it has been held that a defendant convicted of a breach of 
the peace cannot afterwards be tried for an assault of which 
the breach of the peace was an ingredient."^ 

From these decisions the general rule follows that when 
tlie facts constitute two or more offenses, wherein the minor 
offense is necessarily involved in the major, and when the 
facts necessary to convict on a second prosecution would nec- 
essarily have convicted on the first, then the first prosecution 
to a final judgment is a bar to the second.^ Thus, conviction 
of a battery is a bar to a prosecution for assault with intent 

Wall. Jr. 127, Fed. Cas. No. 15,301 : 350; State v. Stcdman. 7 Port 

State V. Behimer, 20 Ohio St. 579. (Ala.) 495; Carpenter v. State, 2i 

See also Wharton, Crim. PI. & Pr. Ala. 84; Reynolds v. State, 11 Te.x. 

§ 465; and notes in 5 L.R.A.(N.S.) 120; State v. Robey, 8 Nev. 312; 

571; 22 L.R.A.(N.S.) 959; and 21 People v. Apgar, 35 Cal. 389. 

L.R.A.(N.S.) 20. ^ State v. Shepard, 7 Conn. 54. 

^ Lewis \. State, S\ K\?L. \; Fields "^ Com. v. Miller, 5 Dana, 320; 

V. State, S2 A\a.3A'&; State V.Smith, Com. v. Hawkins, 11 Bush, 603. 1 

53 Mo. 139; Slaughter v. Com. 6 Am. Crim. Rep. 65. See Wharton, 

Humph. 410; Johnson v. State, 29 Crim. PI. & Pr. § 465. 

Ark. 31, 21 Am. Rep. 154, 2 Am. ^ State v. Elder, 65 Ind. 282, 32 

Crim. Rep. 430. Am. Rep. 69; Com. v. Squire, 1 

5 Wharton, Crim. PI. & Pr. § 465 : Met. 258 ; Rucker v. State. — Miss. 

State V. Dearborn, 54 Me. 442; — , 24 So. 311; State v. Standifer, 

State v. Hardy, 47 N. H. 538; Stat.^ 5 Port. (Ala.) 523; People v. Ap- 

V. Coy, 2 Aik. (Vt.) 181; State v. gar, 35 Cal. 389; Com. v. Neeley, 2 

Reed. 40 Vt. 603 ; State v. Johnson, Chester Co. Rep. 191 ; Com. v. Reed. 

30 N. J. L. 185; Francisco v. State, 4 Lane. L. Rev. 89; State v. Smith, 

24 N. J. L. 30; Stewart v. State, 5 43 Vt. 324; State v. Martin, 30 Wis. 

Ohio, 242; Clark v. State, 12 Ga. 216, 11 Am. Rep. 567. 



585] 



JUDGMENTS AND JUDICIAL RECORDS. 



1217 



to commit murder,^ and a conviction of petit larceny is a bar 
to a prosecution for robbery founded on the same facts.^° 

§ 585. When acquittal of the minor does not bar 
prosecution for the major offense. — Where there could 
have been no conviction of the major offense on the first 
trial, then, on a subsequent prosecution for the major offense, 
the record of the first prosecution is not admissible.^ Thus, 
an acquittal for assault with intent to kill or ravish (the ac- 
quittal being on the ground of merger) is no bar to a subse- 



^ People V. McDanieh, 137 Cal. 
192, 59 L.R.A. 578, 92 Am. St. Rep. 
81, 69 Pac 1006; People v. De- 
foor, 100 Cal. 150, 34 Pac. 642: 
Hamilton v. State, 36 Ind. 280, 10 
Am. Rep. 22; Com. v. Foster, 3 
Met. (Ky.) 1; Com. v. Haivkins, 
11 Bush, 603, 1 Am. Crim. Rep. 65 ; 
Offutt V. Com. 3 Ky. L. Rep. Z2,2,:. 
State V. Cheevers, 7 La. Ann. 40, 
State V. Chaffin, 2 Swan, 493. See 
Wilcox V. State, 6 Lea, 571, 40 Am. 
Rep. 53 ; State v. Parker, 13 Lea, 
225 ; Moore v. State, 33 Tex. Crim. 
Rep. 166, 25 S. W. 1120; Com. v. 
Kinney, 2 Va. Cas. 139 ; Moore v. 
State, 71 Ala. 307; People v. Gor- 
don, 99 Cal. 227, 33 Pac. 901 ; State 
V. Chinault, 55 Kan. 326, 40 Pac. 
■662; People v. Comstock, 55 Mich. 
405, 21 N. W. 384 (where a con- 
viction of assault with intent to 
kill is reversed, accused can be 
tried on same information only 
for the offense charged, and not 
for a single assault; and the 
number of his challenges cannot be 
restricted to less than the number 
to which he is entitled on the grav- 
er charge) ; Paschal v State, 49 
Tex. Crim. Rep. Ill, 90 S. W. 87S. 
Crim. Ev. Vol. II.— 77. 



"^^ Floyd V. State, 80 Ark. 94, 96 
S. W. 125; Starrs v. State, 129 Ala. 
101, 29 So. 778; Gregg v. State, 55 
Ala. 116; State v. Murray, 55 Iowa, 
530, 8 N. W. 350; State v. Mikesell, 
70 Iowa, 176, 30 N. W. 474; Trip- 
lett V. Com. 84 Ky. 193, 1 S. W. 84; 
State V. Wiles, 26 Minn. 381, 4 N. 
W. 615, 2 Am. Crim. Rep. 621; 
State V. Brannon, 55 Mo. 63, 17 
Am. Rep. 643; State v. Cooper, 13 
N. J. L. 361, 25 Am. Dec. 490; Peo- 
ple V. M'Gowan, 17 Wend. 386. 

1 Wharton, Crim. PI. & Pr. § 
465; Reg. v. Morris, L. R. 1 C. C. 
90, 36 L. J. Mag. Cas. N. S. 84, 16 
L. T. N. S. 636, 15 Week. Rep. 999, 
10 Cox, C. C. 480; Reg. v. Salvi, 
10 Cox, C. C. 481, note; Reg. v. 
Button, 11 Q. P.. 929, 18 L. J. Mag. 
Cas. N. S. 19, 12 Jur. 1017, 3 Cox, 
C. C. 229; Josslyn v. Com. 6 Met. 
236 ; Com. v. Herty, 109 Mass. 348 ; 
JVilson V. State, 24 Conn. 57; Stale 
V. Warner, 14 Ind 572; Freeland v. 
People, 16 111. 380; Severin v. Peo- 
ple, 37 III. 414; Scott v. Unitei 
States, Morris (Iowa) 142; People 
V. Knapp, 26 Mich. 112; State v. 
Martin, 30 Wis. 216, 11 Am. Rep. 
567; Duncan v. Com. 6 Dana, 295. 



1218 EVIDENCE IN CRIMINAL CASES. [CHAP. XII. 

quent indictment for the consummated offense ; ^ and a con- 
viction of an assault with intent to kill is not a bar to a sub- 
sequent prosecution for murder, where the person assaulted 
died from his injuries.^ But if the major offense could have 
been included in the first prosecution, and was omitted, either 
neghgently or wilfully, and the facts constituting the major 
offense were put in evidence on the first prosecution, then there 
can be no second trial for such offense.* 

All offenses based on the same facts, supported by the same 
evidence, ought to be included in the one prosecution. While 
there are obvious instances of a single crime including two 
offenses of such different grade that the prosecution of the 
minor without the major would work great injustice, yet it 
would subvert the ends of justice to permit a crime to be split 
up into several offenses, any one of which could be prosecuted 
at different periods within the statute of limitations, and on 
these principles the first prosecution should include and be 
decisive of every grade of the offense of which the accused 

2 Wharton, Crim, PI. & Pr. §§ '^Reg. v. Elr'mgfon, 9 Cox, C. C. 
456, 465; State v. Murray, 15 Me. 89, 1 Best & S. 689, 10 Week. Rep. 
100; Com. v. Kmgsbury, 5 Mass. 13, 31 L. J. Mag. Cas. N. S. 14, 8 
106; People v. Mather, 4 Wend. Jur. N. S. 97, 5 L. T. N. S. 284, 
265, 21 Am. Dec. 122. See Com. v. citing Reg. v. Stanton, 5 Cox, C. 
Parr, 5 Watts & S. 345 C. 324; Re Thompson, 9 Week. 

3 Reg. V. MorriS: L. R 1 C. C. 90, Rep. 203 ; Rex v. Champneys, 2 
36 L. J. Mag. Cas. N. S. 84, 16 L. Moody & R. 26; State v. Smith, 43 
T. N. S. 636, 15 Week. Rep. 999, 10 Vt. 324; State v. Stanly, 49 N. C. 
Cox, C. C. 480; Reg. v. Salvi, 10 (4 Jones, L.) 290. Though see 
Cox, C. C. 481, note; Com. v. Smith v. Com. 7 Gratt. 593. See 
Evans, 101 Mass. 25; Biirus v. Peo- Wharton, Crim. PI. & Pr. §§ 407, 
pie, 1 Park. Crim. Rep. 182; Wright 465; Reg. v. Tancock, 13 Cox, C. 
V. Slate, 5 Ind. 527; supra, § 570; C. 217, 34 L. T. N. S. 455; Mc- 
Hophins v. United States, 4 Apn. Nully v. State, 110 Tenn. 482. 75 
D. C. 430; Com. v. Ramunno, 219 S. W. 1015, 15 Am. Crim. Rep. 302; 
Pa. 204, 14 L.R.A.(N.S.) 209, 123 Davis v. State. — Tex. Crim. Rep. 
Am. St. Rep. 653, 68 Atl. 184, 12 — . 47 S. W. 978; Murphy v. Com. 
A. & E. Ann. Cas. 818. See also 23 Gratt. 960. 

note in 14 L.R.A.(N.S.) 209. 



§ 585] JUDGMENTS AND JUDICIAL RECORDS. 1219 

could be convicted. Courts generally recognize these condi- 
tions, and interpose the bar of the first prosecution wherever 
it is sought to prosecute for a part of what is properly a single 
offense. Thus, where a note was in a pocketbook at the time 
it was stolen by the accused, a conviction of stealing the pock- 
etbook is a bar to an indictment for stealing the note.^ An 
accused charged with possession of a counterfeit plate, and 
acquitted, was charged on a second indictment with posses- 
sion of another plate, and the evidence concerning the same 
was so connected that the possession of one necessarily in- 
volved possession of the other, so that the first prosecution 
was a bar to the second indictment.^ The general rule is that 
an accused cannot be convicted and punished for two distinct 
offenses arising out of the same identical act, when one is a 
necessary ingredient of the other, and when one offense has 
been prosecuted to conviction.' 

While the exceptions noted are clear and distinct, they do 
not alter the general rule that where there could have been 
no conviction of the major offense on the former indictment, 
nor, by any reasonable construction could the major offense 
have been included in the first indictment, then a judgment on 
such indictment is not a bar to a subsequent indictment for 
the major oft'ense.' 

^United States v. Lee, 4 Cranch, E. 653; Com. v. Allegheny Valley 

C. C. 446, Fed. Cas. No. 15,586. R. Co. 21 Pa. Super. Ct. 188. See 

^United States v. Miner, 11 Hosier v. State, 6 Tex. App. 542; 

Blatchf. 511. Fed. Cas. No. 15,780. State v. Caston, — Miss. — , 50 So. 

''State V. Cooper, U N. J. L. 361, 569; State v. Lismore, 94 Ark. 211, 

25 Am. Dec. 490; People v. Van 29 L.R.A.(N.S.) 721, 126 S. W. 

Keuren, 5 Park. Crim. Rep. 66 ; 855 ; La Flour v. State, — Tex. 

State V. McCormack, 8 Or. 236: Crim. Rep. — 129 S. W. 351; Piper 

Wright V. State, 17 Tex. App. 152; v. State, 53 Tex. Crim. Rep. 485, 

State V. Egglesht. 41 Iowa. 574, 20 110 S. W. 899. 
Am. Rep. 612; State v. Bcnham, 7 ^Nagel v. People, 229 111. 598, 82 

Conn. 414; Deshazo v. State, 65 N. E. 315; Stale v. Reed, 168 Ind. 

Ark. 38, 44 S. W. 453 ; Noland v. 588, 81 N. E. 571 ; E.v parte Roach, 

People, 33 Colo. 322, 80 Pac. 837; 166 Fed. 344. 
Craig v. State, 108 Ga. 776, 33 S. 



1220 EVIDENCE IN CRIMINAL CASES. [CHAP. XII. 

§ 586. Conviction on the major as a bar to prosecution 
on the minor offense, or vice versa. — On the principle of 
included degrees, or that a criminal act may include a major 
and a minor ofTense, a conviction or an acquittal of the major 
offense bars a subsequent prosecution for the minor offense. 
Thus, a conviction or acquittal on an indictment for murder 
is a bar to a subsequent prosecution for manslaughter ; a con- 
viction or acquittal on an indictment for burglary and larceny 
is a bar to a subsequent prosecution for larceny.^ An accused, 
indicted for a major, but only convicted of a minor, offense, is 
acquitted of the major offense, and such acquittal is a bar to a 
subsequent indictment for the minor offense,^ and it follows 
that where there can be a conviction of a minor offense in- 
cluded in tlie major, such conviction or acquittal of the minor 
offense is a bar to the prosecution of the major.^ 

As already shown,* the general rule is that when the facts 
constitute two or more offenses, wherein the minor offense is 
necessarily involved in the major, and when the facts neces- 
sary to convict on the second prosecution would necessarily 
have convicted on tlie first, then the first prosecution is a bar 

1 Vaux's Case, 4 Coke, 45a ; 2 2 People v. Apgar, 35 Cal. 389 ; 

Hale, P. C. 246; Fost. C. T.. State v. Standifer, 5 Port. (Ala.) 

339 ; Reg. v. Barratt, 9 Car. 523 ; State v. Hattabough, 66 Ind. 

& P. 387; People v. M'Gowan, 223; Triplett v. Com. 84 Ky. 193. 

17 Wend. 386; People v. Loop, 1 S. W. 84. See State v. Ingles, 

3 Park. Crim. Rep. 561; Loh- 3 N. C. (2 Hayw.) 4; Com. v. 

man v. People, 1 N. Y. 379, 49 Am. Neeley, 2 Chester Co. Rep. 191. 

Dec. 340 ; State v. Cooper, 13 N. J. ^ Com. v. Bass, 3 Lane. L. Rev. 

L. 361, 25 Am. Dec. 490; Diuk-iy 278; Com. v. Reed, 4 Lane. L. Rev. 

V. Com. 17 Pa. 126, 55 Am. Dec. W; State v. Smith, A2 \t. ?,2A; Peo- 

542 ; State v. Reed, 12 Md. 263 ; pie v. Defoor, 100 Cal. 150, 34 Pac. 

State V. Lezvis, 9 N. C. (2 Hawks) 642 (conviction of an assault, un- 

98, 11 Am. Dec. 741 ; State v. Scott, der an information charging as- 

15 S. C. 434; State v. Smith, 16 Mo. sault v^rith intent to kill) ; Hamil- 

550; State v. Keogh, 13 La. Ann. ton v. State, 36 Ind. 280, 10 Am. 

243; Wilcox v. State, 31 Tex 586; Rep. 22. 

Wharton, Crim. PI. & Pr. § 466. « Supra, § 584, note & 



§ 586] 



JUDGMENTS AND JUDICIAL RECORDS. 



1221 



to the second. The converse of the rule, or where the major 
offense is necessarily involved in the minor offense, is also 
true. Hence, where the major offense necessarily involves the 
minor, and the major offense is prosecuted to a final judgment 
first, it is a bar to a second prosecution involving the minor of- 
fense.^ There is, however, a clear distinction between an act 
which necessarily involves a major and a minor offense, or a 
higher and a lower degree of the same offense, and an act 
which in itself involves two or more distinct offenses. Thus, 
the accused may at the same time and by the same act commit 
two or more distinct crimes, and the acquittal of one is not a 
bar to a prosecution of the other.® The rule also holds that 
where there could not have been a conviction of the minor 
offense under the first indictment, then such first prosecution 
is not a bar to the second prosecution.''^ Thus, an acquittal for 



5 See People v. Cox, 107 Mich. 
435, 65 N. W. 283; Fox v. State, 
50 Ark. 528, 8 S. W. 836; Re Niel- 
sen. 131 U. S. 176, 33 L. ed. 113. 
9 Sup. Ct. Rep. 672; People v. 
Stephens, 79 Cal. 428, 4 L.R.A. 845, 
21 Pac. 856 ; Reddy v. Com. 97 Ky. 
784, 31 S. W. 730; State v. Lind- 
say, 61 N. C. (Phill. L.) 468; 
Monroe v. State, 111 Ala. IS. 20 So. 
634; Lehman v. People. 1 N. Y. 
379, 49 Am. Dec. 340." 

^ State V. Standifer, 5 Port. 
(Ala.) 523; United States v. Har- 
mison, 3 Sawy. 556, Fed. Cas. No. 
15,308; Brewer v. State, 59 Ala. 
101; Copenhaven v. State. 15 Ga. 
264; State v. Elder. 65 Ind. 282, 32 
Am. Rep. 69; State v. Horneman. 
16 Kan. 452, 2 Am. Crim. Rep. 427 ; 
State V. Faulkner, 39 La. Ann. 811, 
2 So. 539; State v. Inness, 53 Me. 
536. See Com. v. Clair, 7 Allen, 
525; Com. v. Bakeman, 105 Mass. 



53; Morcy v. Com. 108 Mass. 433; 
Teat V. State, 53 Miss. 439, 24 Am. 
Rep. 708; Ball v. State, 67 Miss. 
358, 7 So. 353 ; State ex rel. Burton 
V. Williams, 11 S. C. 288; Clifford 
V. State, 29 Wis. 327 (holding that 
where several offenses are averred 
conjunctivelj\ an acquittal or con- 
viction may be pleaded in bar of a 
second prosecution for either of the 
offenses ; but it is not a bar where 
the charge is made in the disjunc- 
tive) ; Caudle v. State, 57 Tex. 
Crim. Rep. 363, 123 S. AV. 413. 

7 Hawk. P. C. bk. 2, chap. 25, § 
5 ; Rex v. Westbeer, 1 Leach, C. L. 
12 ; Reg. v. Henderson, Car. & M. 
328, 2 Moody, C. C. 192; State v. 
Warner, 14 Ind. 572; State v. 
Jesse, 20 N. C. 95 (3 Dev. & B. L. 
98) ; State v. Standifer, 5 Port. 
(Ala.) 523; State v. Wightman, 26 
Mo. 515. See however Reg. v. 
Gould, 9 Car. & P. 364. 



1222 



EVIDENCE IN CRIMINAL CASES. [CHAP. XII. 



burglary with intent to steal does not bar a prosecution for 
larceny;* and an acquittal of homicide, on the ground that 
the assaults averred did not contribute to it, is not a bar to a 
subsequent indictment for the assaults.' 

§ 587. Where two are simultaneously killed, a prose- 
cution for killing one does not bar a prosecution for kill- 
ing the other. — There are several decisions to the effect 
that it is permissible to include in one indictment the killing 
of B and C simultaneously by one blow, and the homicides 
can be tried together, and a verdict found that will include 
both.* With the exception of these decisions, the rule is uni- 
versal that one who kills another, mistaking such other for the 
person whom he intended to kill, is guilty or innocent of the 
offense charged the same as though the act had killed the per- 
son he intended to kill.^ This rule is based upon the theory 



^ State V. Warner, 14 Ind. 572; 
Roberts v. State, 14 Ga. 8, 58 Am. 
Dec. 528. 

9 Reg. V. Bird, Temple & M. 437. 
2 Den. C. C. 94, 20 L. J. Mag. Cas. 
N. S. 70, 15 Jur. 193, 5 Cox, C. C. 
20. See supra, §§ 91-93 ; Moore v. 
State, 59 Miss. 25. 

1 Womack V. State, 7 Coldw. 508; 
Rucker v. State, 7 Tex. App. 549, 
9 Rep. 525. And so Clem v. State, 
42 Ind. 420, 13 Am. Rep 369. 

2 Clarke v. State, 78 Ala. 474. 56 
Am. Rep. 45, 6 Am. Crim. Reo. 
525; Tidwell v. State, 70 Ala. 33; 
Murhhy V. State, 108 Ala. 10. IS 
So. 557; Jackson v. State, 106 Ala. 
12, 17 So. 333 ; State v. Diiqan, 
Houst. Crim. Rep. (Del.) 563; 
Ringer v. State, 74 Ark. 262, 85 
S. W. 410; State v. Brozvn, 4 Penn. 
(Del.) 120, 53 Atl. 534; Brown v. 
State, 147 Ind. 28, 46 N. E. 34; 



State V. Williams, 122 Iowa, 115. 
97 N. W. 992; Thompkins v. Com. 
28 Ky. L. Rep. 642, 90 S. W. 221 ; 
Jennings v. Com. 13 Ky. L. Rep. 
79, 16 S. W. 348; State v. Baptiste, 
105 La. 661. 30 So. 147; Stale v. 
Renfrow, 111 Mo. 589, 20 S. W. 
299; McGehee v. State, 62 Miss. 
772, 52 Am. Rep. 209 ; State v. Ben- 
ton, 19 N. C. (2 Dev. & B. L.) 222; 
State V. Johnson, 7 Or. 210; Ware- 
ham V. State, 25 Ohio St. 601; 
Com. V. Breyessee, 160 Pa. 451, 40 
Am. St. Rep. 729, 28 Atl. 824; 
State V. Smith, -2 Strobh. L. 77, 47 
Am. Dec. 589; Wright v. State, -44 
Tex. 645; Angell v. State, 36 Tex. 
542, 14 Am. Rep. 380; Thornton v. 
State, — Tex. Crim. Rep. — , 65 S. 
W. 1105; Nelson v. State. 48 Tex. 
Crim. Rep. 274. 87 S. W. 143; State 
V. Clifford, 59 W. Va. 1. 52 S. E. 
981; State v. Briggs, 58 W. Va. 



587] 



JUDGMENTS AND JUDICIAL RECORDS. 



1223 



that if A aims at B, and hits C, the intent will be transferred 
to C, and A will be guilty;' and the grade of the offense is 
the same as though the accused had effected his original in- 
tent.* A, for instance, shooting at B in self-defense, negli- 
gently kills C, but an acquittal for killing B does not bar a 
prosecution for killing C. Or, A, an officer, when killing B 
under legal warrant, negligently kills C, but an acquittal for 
killing B is not a bar to a prosecution for killing C. Or, A, 
designing to poison B, by the same poison at the same meal 
negligently poisons C, but a verdict of manslaughter for kill' 
ing C does not bar a prosecution for the murder of B.^ 



291, 52 S. E. 218. And see State v. 
Shanley, 20 S. D. IS, 104 N. W. 
522. 

^Reg. V. Stop ford, 11 Cox, C. C. 
643 (1870) ; Reg. v. Latimer, L. R. 
17 Q. B. Div. 359, s. c. 16 Cox, C. 
C. 70, 55 L. J. Mag. Cas. N. S. 135. 
54 L. T. N. S. 768, 51 J. P. 184 
(1886) ; Dimazvay v. People, 110 
III. 333, 51 Am. Rep. 686. 4 Am. 
Crim. Rep. 60 (1884); McGehee v. 
State, 62 Miss. 772, 52 Am. Rep. 
209 (1885) ; Burchet v. Com. 8 Ky. 
L. Rep. 258, 1 S. W. 423 (1886^; 
Territory v. Rozvand, 8 Mont. 432, 
20 Pac. 688, 21 Pac. 19 (1889) ; 
Jennings v. Com. 13 Ky. L. Rep. 
79, 16 S. W. 348 (1891); Com. v. 
Breyessee, 160 Pa. 451. 40 Am. St. 
Rep. 729, 28 Atl. 824 (1894) ; Con- 
tra, Reg. V. Hewlett, 1 Fost. & F. 
91 (1858); Morgan v. State. 13 
Smedes & M. 242 (1849); Barcus 
V. State, 49 Miss. 17, 19 Am. Rep. 
1, 1 Am. Crim. Rep. 249 (1873) ; 
Com. V. Morgan, 11 Bush, 601 
(1876) ; Lacefield v. State, 34 Ark. 
275, 36 Am. Rep. 8 (1879) ; People 
V. Robinson, 6 Utah, 101, 21 Pac. 



403 (1889); Callahan v. State, 21 
Ohio St. 306; State v. Renfrow, 
111 Mo. 589, 20 S. W. 299; State v. 
Gilmore, 95 Mo. 554, 8 S. W. 359, 
912 ; State v. Clark, 147 Mo. 20, 47 
S. W. 886; State v. Cooper, 13 N. 
J. L. 361, 25 Am. Dec. 490; Clark 
V. State, 19 Tex. App. 495. 

* State V. Henson, 81 Mo. 384 
(1884) ; State v. Montgomery, 91 
Mo. 52, 3 S. W. 379 (1886) ; Pinder 
V. State, 27 Fla. 370, 26 Am. St. 
Rep. 75, 8 So. 837 (1891) ; State v. 
Renfrozv. Ill Mo. 589, 20 S. W. 
299 (1892). Com. v. Breyessee, 
160 Pa. 451, 40 Am. St. Rep. 729. 
28 Atl. 824 (1894) ; Miisick v. State, 
21 Tex. App. 69, 18 S. W. 95 
(1886). 

5 State V. Standifer, 5 Port. 
(Ala.) 523; Gunter v. State, 111 
Ala. 23, 56 Am. St. Rep. 17, 20 So. 
632 ; People v. Majors, 65 Cal. 138, 
52 Am. Rep. 295, 3 Pac. 597, 5 Am. 
Crim. Rep. 486, — Cal. — , 2 Pac. 
744; State v. Vines, 34 La. Ann. 
1079, 4 Am. Crim. Rep. 296; Teat 
V. State, 53 Miss. 439, 24 Am. Rep. 
708; Jones v. State, 66 Miss. 380, 



1224 



EVIDENCE IN CRIMINAL CASES. [CHAP. XII. 



In such cases two distinct crimes are committed, and a plea 
of former jeopardy on the trial of one is no defense to a sub- 
sequent prosecution for the other crime, and this is true of 
all criminal offenses where the crimes are distinct, even though 
they are committed at the same time, with the same intent, 
and based upon the same act.^ 



14 Am. St. Rep. 570, 6 So. 231: 
People V. Warren, 1 Park. Crim. 
Rep. 338; State v. Nash, 86 N. C. 
650, 41 Am. Rep. 472; Ashton v. 
State, 31 Tex. Crim. Rep. 482, 21 
S. W. 48; State v. Robinson, 12 
Wash. 491, 41 Pac. 884; Winn v. 
State, 82 Wis. 571, 52 N. W. 775. 

^McNish V. State, A7 Fla. 66, 36 
So. 175; Mcintosh v. State, 116 Ga. 
543, 42 S. E. 793, 15 Am. Crim. 
Rep. 292; Baker v. Com. 20 Ky. L. 
Rep. 879, 47 S. W. 854; Com. v. 
Hope, 22 Pick. 1 ; People v. Ochot- 
ski, 115 Mich. 601, 72, N. W. 889; 
Burton v. United States, 202 U. S. 
344, 50 L. ed. 1057, 26 Sup. Ct. Rep. 
688, 6 A. & E. Ann. Cas. 362 (ac- 
quittal upon charge of receiving- 
forbidden compensation from a per- 
son is not a bar to a prosecution for 
receiving such compensation from 
a corporation) ; Gnlly v. State, 116 
Ga. 527, 42 S. E. 790,' 15 Am. Crim. 
Rep. 294 (acquittal on charge of 
bigamy by contracting an illegal 
marriage with one does not bar 
prosecution for contracting an il- 
legal marriage with another) ; Ex 
parte Dreesen, 54 Tex. Crim. Rep. 
612, 114 S. W. 806 (defacing rec- 
ords) ; State v. Blodgett. 143 Iowa, 
578, 121 N. W. 685 (acquittal of 
uttering a forgery is not a bar for 
committing the forgery) ; State v. 



Temple, 194 Mo. 228, 92 S. W. 494 ; 
Augustine v. State, 41 Tex. Crim. 
Rep. 59, 96 Am. St. Rep. 765, 52 
S. W. 77 ; Kelley v. State, 43 Tex. 
Crim. Rep. 40, 62 S. W. 915; State 
V. Biirlingame, 146 Mo. 207, 48 S. 
W. 72 (an acquittal of a charge of 
receiving deposits in an insolvent 
bank made by one person does not 
bar a subsequent prosecution for a 
deposit made by another person) ; 
Com. V. Hazlett, 16 Pa. Super. Ct. 
534; Hotetna v. United States, 186 
U. S. 413, 46 L. ed. 1225, 22 Sup 
Ct. Rep. 895 (trial on consolidated 
indictments not a bar) ; Wallace v. 
State, 41 Fla. 547, 26 So. 713 (ac- 
quittal of conspiracy to extract 
money from one person does not bar 
prosecution for extraction from an- 
other person) ; see Dunn v. State. 
43 Tex. Crim. Rep. 25, 63 S. W. 
571; Wallace v. State, 57 Tex. 
Crim. Rep. 354, 123 S. W. 135; 
State V. Babbitt, 228 Mo. 252, 128 
S. W. 953 (acquittal of murder at 
the time of an attempt at arson does 
not bar prosecution for arson) ; 
Phillips V. State, 85 Tenn. 551, 3 
S. W. 434, 7 Am. Crim. Rep. 318 
(prosecution for burglary and lar- 
ceny for taking the goods of one 
person does not bar prosecution for 
larceny by taking the goods of an- 
other person, although taken from 
the same place) ; Greenwood v. 



§ 5o7a] JUDGMENTS AND JUDICIAL RECORDS. 



1225 



§ 587a. Offenses against different sovereignties, aris- 
ing out of the same act. — Where the same act violates a 



State, 64 Ind. 250, 3 Am. Crim. Rep. 
154 (prosecution for assault and 
battery upon one, no bar to a sim- 
ilar prosecution for assault and bat- 
tery upon another at the same timo 
and place, both assaults being made 
during the continuance of an af- 
fray) ; United States v. Flecke, I 
Ben. 456, Fed. Cas. No. 15,120 (ac- 
quittal for distilling without license 
is not a bar for knowingly usin:^ 
a still for the purpose of distilling 
in a dwelling house, even though 
the place is the same) ; State v. 
White, 123 Iowa, 425, 98 N. W. 
1027 (conviction for keeping a 
gambling house, or permitting per- 
sons to play for money, is not a 
bar to a prosecution for gambling, 
although the latter offense arises 
out of the same act) ; Mann v. 
Com. 118 Ky. 67, 111 Am. St. Rep. 
289, 80 S. W. 438 (breaking into 
a house with intent to steal, and 
shooting at the owner, constitute 
two offenses, so that conviction of 
the shooting is not a bar to a prose- 
cution for burglary) ; State v. Ma- 
gone, 33 Or. 570, 56 Pac. 648 (ac- 
quittal for malicious destruction of 
property does not bar prosecution 
for the illegal disinterment of a 
body, though the first prosecution 
related to the casket in which it 
was inclosed) ; Miller v. State, 2>i 
Ind. App. 509, 71 N. E. 248 (pro- 
voking an assault and attempting 
an assault are distinct offenses un- 
der the statute, and an acquittal 
of one is not a bar to prosecution 
for another) ; Richardson v. State, 



79 Miss. 289, 30 So. 650 (trial for 
assault with intent to kill does not 
bar prosecution on charge of in 
tentionally shooting at a person) 
State V. Caddy, 15 S. D. 167, 91 Am 
St. Rep. 666, 87 N. W. 927 (acquit 
tal of an assault with a deadly 
weapon, with intent to rob, does not 
bar a prosecution for robbery com- 
mitted against the same person) ; 
Taylor v. State, 41 Tex. Crim. Rep. 
564, 55 S. W. 961 (conviction of as- 
sault with attempt to rob is not a 
bar to a prosecution for a murder 
committed in the same transac- 
tion) ; Ford v. State, — Tex. Crim. 
Rep. — , 56 S. W. 918 (convictioii 
of an assault with intent to kill 
does not bar prosecution for carry- 
ing firearms, though both offenses 
were committed on the same occa- 
sion, as parts of the same transac- 
tion) ; People v. Devlin, 143 Cal 
128, 76 Pac. 900 (conviction of la;-- 
ceny immediately on entering a 
building does not bar prosecution 
for burglary in entering the build- 
ing) ; People v. Kerrick, 144 Cal. 
46, 77 Pac. 711 (conviction of al- 
tering brands on cattle with intent 
to steal does not bar prosecution 
for grand larceny in stealing such 
cattle) ; Spears v. People. 220 111. 
72, 4 L.R.A.(N.S.) 402, 77 N. E. 
112 (acquittal of larceny does not 
bar prosecution for passing a 
forged instrument, though both 
prosecutions grew out of the same 
act) ; State v. Anderson, 186 Mo. 
25, 84 S. W. 946 (larceny and ob- 
taining money by false pretenses. 



1226 



EVIDENCE IN CRIMINAL CASES. [CHAP. XII. 



State law and a city ordinance, the accused may be tried for 
both offenses. A conviction or acquittal by one sovereignty 
is not a bar to a prosecution of the same offense by another 
sovereignty, and the subsequent prosecution is not such a vio- 



though based on the same facts, 
contain such essentially different 
elements that acquittal of the lar- 
ceny charge is not a bar to a sub- 
sequent prosecution for obtaining 
the same money by false pre- 
tenses) ; Sharp v. State, 61 Neb. 
187, 85 N. W. 38, 15 Am. Crim. Rep. 
462 (burglary and resulting larceny 
constitute two offenses, so that a 
conviction of one does not bar a 
prosecution for the other) ; Blair 
V. State, 81 Ga. 629, 7 S. E. 855, and 
Smith V. State, 105 Ga. 724, 32 S. 
E. 127 (conviction for selling li- 
quor to minor, no bar to prosecu- 
tion for selling liquor without a li- 
cense, although the two offenseo 
are founded on the same act) ; 
State V. Gapen, 17 Ind. App. 524, 45 
N. E. 678, 47 N. E. 25; Com. v. 
Vaughn, 101 Ky. 603, 45 L.R.A. 
858, 42 S. W. 117; State v. Wold, 
96 Me. 401, 52 Atl. 909 (having li- 
quor in possession with intent to 
sell, and maintaining a common 
nuisance, are distinct offenses, even 
on the same facts, so that an ac- 
quittal of one does not bar prosecu- 
cution for the other) ; Carroll v. 
State, 80 Miss. 349, 31 So. 742 (ac- 
quittal on charge of selling liquor 
does not bar prosecution for con- 
niving at a sale on the same prem- 
ises, founded on the same fact) : 
Com. V. Montr OSS, 8 Pa. Super. Ct. 
237 (acquittal of selling liquor on 
Sunday does not bar prosecution 
for selling without a license) ; Car- 



ter V. McCla^ighry, 183 U. S. 365, 
46 L. ed. 236, 22 Sup. Ct. Rep. 181 
(dismissal from the Army by sen- 
tence of court-martial, and impos- 
ing imprisonment for conspiring to 
defraud the government, are two 
offenses, although to be guilty of 
the latter involves being guilty of 
the former) ; see Burnam v. State, 
2 Ga. App. 395, 58 S. E. 683 (under 
the "same transaction test," prose- 
cution for killing one person may 
constitute a bar to a prosecution 
for assault with intent to kill a dif- 
ferent person) ; Wilcox v. West, 7 
Ind. Terr. 86, 103 S. W. 774 (ac- 
quittal of an assault against a Unit- 
ed States officer. is not a bar to a 
prosecution for disturbing tho 
peace and quiet of a family in 
whose presence the assault was 
committed) ; State v. Oakes. 202 
Mo. 86, 119 Am. St. Rep. 792, 100 
S. W. 434 (the question presented 
by a plea of former jeopardy is 
one of law, for the determination 
of the court) ; Wood v. State, 30 
Ohio C. C. 255 (prosecution for 
cruelty to one animal will not bar 
prosecution for cruelty to another 
animal under control of a different 
driver, for the two offenses are dis- 
tinct and committed by different 
agents) ; Thomas v. United States, 
17 L.R.A. (N.S.) 720, 84 C. C A. 
477, 156 Fed. 897 (acquittal of con- 
spiracy to induce rebates is not a 
bar to a prosecution for inducing 
shippers to accept them). 



§ 587a] JUDGMENTS AND JUDICIAL RECORDS. 



1227 



lation of the constitutional provision against twice in jeopardy 
that he can plead the former in bar of the latter.^ The same 
principle applies where the act committed is an offense against 
the laws of the state and of the United States,^ although it 
has been held that where an act is punishable by the laws of 
the state and also by the laws of the United States, that the 
accused ought not to be twice punished for the same offense, 
but the court which first exercises jurisdiction ought to en- 
force it by trial and judgment.^ And, in harmony with the 
definition of the text, that it is essential to former jeopardy 
that the former and subsequent prosecutions must occur in 
the same state, a conviction in one state does not prevent a 



^Hamilton v. State, 3 Tex. App. 
643 ; Greenwood v. State, 6 Baxr. 
567, 32 Am. Rep. 539; Anderson v. 
O'Donnell, 29 S. C. 355, 1 L.R.A. 
632, 13 Am. St. Rep. 728, 7 S. E. 
523; Koch v. State, 8 Ohio C. C. 
641; State v. Stevens, 114 N. C. 
873, 19 S. E. 861; State v. Reid, 115 
N. C. 741, 20 S. E. 468; Johnson v. 
State, 59 Miss. 543; State v. Lee, 
29 Minn. 445, 13 N. W. 913; Sha- 
fer V. Mumma, 17 Md. 331, 79 Am. 
Dec. 656; State v. Clifford, 45 La. 
Ann. 980, 13 So. 281; Fortner v 
Duncan, 91 Ky. 171, 11 L.R.A. 188. 
IS S. W. 55 ; Kemper v. Com. 85 
Ky. 219, 7 Am. St. Rep. 593; 3 S. 
W. 159; Levy v. State, 6 Ind. 281; 
Rohbins v. People, 95 111. 175; /\'- 
Graffenreid v. State, 72 Ga. 212; 
Purdy V. State, 68 Ga. 295 ; Theisen 
V. McDavid, 34 Fla. 440, 26 L.R.A. 
234, 16 So. 321 ; Van Biiren v. 
Wells, 53 Ark. 368. 22 Am. St. Rep. 
214, 14 S. W. 38; Black v. State, 
144 Ala. 92, 40 So. 611; Bueno v. 
State, 40 Fla. 160, 23 So. 862. See 



Lucas V. Com. 118 Ky. 818, 82 S. 
W. 440 ; State v. Muir, 86 Mo. App. 
642; State v. Taylor, 133 N. C. 755, 
46 S. E. 5 ; State v. Lytic, 138 N. C. 
738, 51 S. E. 66; Morganstern v. 
Com. 94 Va. 787, 26 S. E. 402; 
Ehrlick V. Com. 125 Ky. 742, 10 
L.R.A.(N.S.) 995, 128 Ai^. St. Reo. 
269, 102 S. W. 289; Re Henry, 15 
Idaho, 756, 21 L.R.A. (N.S.) 207, 
99 Pac. 1054; Seattle v. Mac- 
Donald, 17 L.R.A.(N.S.) 49 (ex- 
haustive note on all questions con- 
nected with distinct offenses, con- 
current jurisdiction, and former 
jeopardy). 

2 United States v. Barnhart, 10 
Sawy. 491, 22 Fed. 285; State v. 
Rankin, 4 Coldw. 145; State v. Nor- 
man, 16 Utah, 457, 52 Pac. 986; 
State V. Moore, 143 Iowa, 240, 121 
N. W. 1052. But see U^iitcd States 
V. Mason, 213 U. S. 115. 53 L. ed 
725, 29 Sup. Ct. Rep. 480 

^Com. V. Fuller, 8 Met. 313, 41 
Am. Dec. 509. See Brooke v. 
State, 155 Ala. 78, 46 So. 491, 



1228 EVIDENCE IN CRIMINAL CASES. [CHAP. XII. 

subsequent prosecution in another state, where the same act 
violates the laws of such other state.'* 

§ 588. Prosecution for stealing from A doos not bar 
prosecution for stealing from B by the same act; excep- 
tion. — It is not only proper, but right, where a number of 
articles having a common ownership are stolen simultaneously, 
that they should be grouped in the same indictment,^ from 
which it follows that on an indictment for stealing the goods 
of A, it is admissible to put in evidence, in bar, a prior prose- 
cution for stealing at the same time other goods of A. If the 
prosecution did not lump all the goods stolen in the first in- 
dictment, it was its own fault; and it cannot avail itself of 
its own negligence to multiply indictments against the defend- 
ant. But a more difficult question arises where articles simul- 
taneously stolen belong to different owners, in which case it 
is argued that, because each owner is entitled to restitution, 
he cannot be precluded from this by a proceeding as to whicl) 
he may not have had notice, and that therefore several steal- 
ings from different owners cannot be grouped in the same in- 
dictment.^ This conclusion, however, has been rejected by 

^Phillips V. People, 55 111. 429; See Wharton, Crim. PI. & Pr. § 

Bloomer v. State, 48 Md. 521, 3 Am. 470. See also State v. Egglesht. 

Crim. Rep. Z7 ; Marshall v. State, 41 Iowa, 574, 20 Am. Rep. 612 

6 Neb. 120, 20 Am. Rep. 363. But Compare Walter v. Com. 88 Pa. 

see Com. v. Frazee, 2 Phila. 191. 137, 32 Am. Rep. 429, cited supra. 

1 Rex V. Carson, Russ. & R. C. C. § 580 ; State v. McCormack, 8 Or. 
303; Rex v. Fiirneaux, Russ. & R. 236; Quitsozu v. State, 1 Tex. App. 
C. C. 335; State v. Snyder, 50 N. H. 47. 28^ Am. Rep. 396. See Wright 
150; State v. Cameron, 40 Vt. 555; v. State, 17 Tex. App. 152; State 
Com. V. Williams, 2 Cush. 583; v. Benham, 7 Conn. 414; Foster v. 
Com. V. O'Connell, 12 Allen, 451; State, 88 Ala. 182, 7 So. 185; Fish- 
Corn. V. Eastman, 2 Gray, 76; Jack- er v. Com. 1 Bush, 211, 89 Am. Dec. 
son V. State, 14 Ind. 327; State v, 620; State v. Augustine, 29 La. 
Williams. 10 Humph. 101; Lorton Ann. 119; Com. v. Prescott, 153 
V. State, 7 Mo. 55, 37 Am. Dec. 179; Mass. 396, 26 N. E. 1005. 
Hatch V. State, 6 Tex. App. 384. '2 Reg. v. Knight, Leigh & C. C. C. 



588] 



JUDGMENTS AND JUDICIAL RECORDS. 



1229 



several courts, and the preponderating opinion is that, when 
there is a taking of the articles of several owners by a single 
act, the prosecution may elect to indict for all the articles to- 
gether.^ If so, on the reasoning already given, by indicting 
for stealing a single article, it may preclude itself from a 
further prosecution of the transaction.* But as to whether 
or not the prosecution would preclude itself by indicting for a 
single offense, where several offenses were committed, concur- 
ring only in point of time of commission, depends upon the 
statutory provisions relating to the same. It is obvious that 
in those states in which there can be no joinder of distinct of- 
fenses against different owners, an acquittal of one would not 
bar the other.^ But wherever the prosecution is at liberty to 



278, 9 L. T. N. S. 808, 9 Cox, C. C. 
437; State v. Newton, 42 Vt. 537; 
Com. V. Andrews, 2 Mass. 409; 
State V. Thurston, 2 McMull, L. 
382; Com. v. Hoffman, 121 Mass. 
369 ; State v. English, 14 Mont. 399, 
36 Pac. 815 ; State v. Bymim, 117 N. 
C. 752, 23 S. E. 219; Alexander v. 
State, 21 Tex. App. 406, 57 Am. 
Rep. 617. 17 S. W. 139; State v. 
Emery. 68 Vt. 109, 54 Am. St. Rep. 
878, 34 Atl. 432. 

^ Com. V. Williams, Thacher, 
Crim. Cas. 84; State v. Nelson, 29 
Me. 329 ; State v. Merrill, 44 N. H. 
624; Coin. v. Dobbins, 2 Pars. Sel. 
Eq. Cas. 380; State v. Hennessey, 23 
Ohio St. 339, 13 Am. Rep. 253; 
Lozve V. State, 57 Ga. 171, 2 Am. 
Crim. Rep. 344; Ben v. State, 22 
Ala. 9, 58 Am. Dec. 234; Lor ton v. 
State, 7 Mo. 55, 37 Am. Dec. 179; 
State V. Morphin, 37 Mo. 373 ; Wil- 
son V State, 45 Tex. 76, 23 Am. 
Rep. 602, 2 Am. Crim. Rep. 356; 
United Stales v. Becrman, 5 
Cranch, C. C. 412, Fed. Cas. No. 



14,560. See Wharton, Crim. PI. & 
Pr. § 470; Hudson v. State, 9 Tex. 
App. 151, 35 Am. Rep. 732. 

^ See supra, § 580. 

5 Reg. V. Firth, L. R. 1 C. C. 172, 
38 L. J. Mag. Cas. N. S. 54, 19 L. 
T. N. S. 746, 11 Cox, C. C. 234, 17 
Week. Rep. 327. See Rex v. Jones, 
4 Car. & P. 217; Wharton, Crim. 
PI. & Pr. § 474; United States v. 
Beerman, 5 Cranch, C. C. 412, Fed. 
Cas. No. 14,560; State v. Nelson, 29 
Me. 329; State v. Merrill, 44 N. H. 
624; State v. Hennessey, 23 Ohio 
St. 339, 13 Am. Rep. 253; Bell v. 
State, 42 Ind. 335; State v. Egg- 
lesht. 41 Iowa, 574, 20 Am. Rep. 
612; State v. Lambert, 9 Nev. 321; 
Loive V. State. 57 Ga. 171, 2 Am. 
Crim. Rep. 344; Ben v. State, 22 
Ala. 9, 58 Am. Dec. 234; State v. 
Morphin, 37 Mo. 373 ; Fiilmer v. 
Com. 97 Pa. 503; Shubert v. State. 
21 Tex. App. 551, 2 S. W. 883; Wil- 
lis V. State, 24 Tex. App 586, 6 
S. W. 857; Hudson v. State, 9 Tex. 
App. 151, 35 Am. Rc-^. 732. See 



1230 EVIDENCE IN CRIMINAL CASES. [CHAP. XII. 

join in one indictment simultaneous offenses, sitch as larceny 
of all articles simultaneously stolen, and it selects only one of 
them for trial, an acquittal or conviction is a bar to a subse- 
quent prosecution for the other.^ Hence the general rule now 
obtains that the selection of one offense from a series against 
the same or against different persons, where there is liberty 
to join offenses, bars any subsequent prosecution for the 
others. 

§ 589. Offenses continuing through periods of time. — 

It must be remembered, in view of the terms of the present 
discussion, that, to constitute simultaneousness, it is not nec- 
essary that there should be exact coincidence in a particular 
point of time. It may appear, for instance, that the defend- 
ant has tapped his neighbor's gas pipe, and has for weeks been 
consuming his neighbor's gas. This, however, will not justify 
a series of prosecutions for each day's or each hour's appro- 
priation. The tapping, with the subsequent appropriations, 
constitute one act, and must be prosecuted as such.^ The same 
reasoning applies to the removal, piece by piece, of ore from a 
neighboring quarry, by an orifice made at one specific time.^ 
And it has been held that the setting on fire a block of houses 
constitutes a simultaneous offense, though the houses take fire 
and are consumed at successive periods of time.' 

With regard then to similar oft'enses that cover periods of 
time, where a conviction has been had, and the prosecution 
did not elect a particular oft'ense at a particular time, and there 

supra, § 252; Wharton, Crim. Law, 4 Car. & P. 217; Wharton, Crim. 

9th ed. §§ 931-948; State v. Clark, PI. & Pr. § 474. 

32 Ark. 231. ^ Reg. v. Bleasdale. 2 Car. & K. 

6 Ibid. 765. 4 Mor. Min. Rep. 177. 

^Rcg. V. Firth, L. R. 1 C. C. 172, 3 Woodford v. People, 62 N. Y. 

38 L. J. Mag. Cas. N. S. 854, 19 L. 117, 20 Am. Rep. 464, affirming s. c. 

T. N. S. 746, 11 Cox, C. C. 234, 17 3 Hun, 310, 5 Thomp. & C. 539. 
Week. Rep. 327. See Rex v. Jones, 



§ 590] 



JUDGMENTS AND JUDICIAL RECORDS. 



1231 



was evidence of similar offenses during the statutory period 
of limitation, — such conviction is a bar to a prosecution for 
all similar offenses committed for all time previous to the 
conviction.* 

§ 590. On trial for battery, prosecution for prior simul- 
taneous battery of another is a bar. — It has been frequent- 
ly held admissible for the prosecution, when there have been 
simultaneous batteries on several persons, to include these bat- 
teries in the same count. It follows from this that on a trial 
for one of these batteries it is admissible for the defendant 
to show, in bar of the indictment, that he has been previously 
prosecuted for a simultaneous battery on another person, the 
indictment in the first case averring the double battery ; ^ and 



'^ State V. Nullclly, 43 Ark. 68; 
United States v. BurcJi, 1 Cranch, 
C. C. 36, Fed. Cas. No. 14.683 ; Dix- 
on V. Washington, 4 Cranch, C. C. 
114, Fed. Cas. No. 3,935; State v. 
Blahut, 48 Ark. 34, 2 S. W. 190; 
Freeman v. State, 119 Ind. 501, 21 
N. E. 1101; State v. Lay ton, 25 
Iowa, 193; State v. Waterman, 87 
Iowa, 255, 54 N. W. 359; State v. 
Brnwnrigg, 87 Me. 500, 33 Atl. 11 ; 
Com. V. Robertson, 126 Mass. 259, 
30 Am. Rep. 674, 3 Am. Crim. Rep. 
143; People v. Cox, 107 Mich. 435. 
65 N. W. 283. See Pope v. State, 
63 Miss. 53; State v. Dunston, 78 
N. C. 418; Altenburg v. Com. 126 
Pa. 602, 4 L.R.A. 543, 17 Atl. 799; 
Com. V. Markley, 17 Pa. Co. Ct. 
254: Crenshaw v. State, Mart. & Y. 
122. 17 Am. Dec. 788; Fleming v. 
State, 28 Tex. App. 234, 12 S. W. 
605; State v Nutt. 28 Vt. 598; Rey- 
nolds V. State, 114 Ga. 265, 40 S. E. 
234; Bryant v. State, 72 Ark. 419, 



81 S. W. 234; McWilliamsv. State, 
110 Ga. 290, 34 S. E. 1016; McCoy 
V. State, 121 Ga. 359, 49 S. E. 291; 
Cawein V. Com. 110 Ky. 273, 61 S. 
W. 275 ; Standard Oil Co. v. Com. 
29 Ky. L. Rep. 19, 91 S. W. 1127; 
S*ate V. Gojf, 66 Mo. App. 491; 
State V. Stephens, 70 Mo. App. 554; 
State V. Rob cr son, 136 N. C. 591, 
48 S. E. 596. 

^Rex V. Ben field, 2 Burr. 984; 
Reg. V. Giddins, Car. Sr M 634; 
Com. V. McLauglin, 12 Ctish. 615; 
Com. V. O'Brien, 107 Mass. 208: 
Kenney v. State, 5 R. I. 385 ; Fozvl- 
er V. State, 3 Heisk 154. See 
Wharton, Crim. PI. & Pr. § 469; 
State V. Johnson, 70 Kan. 861, 79 
Pac. 732; Com. v. Chamberlain. 107 
Mass. 209; People v. Ellszvorth, 90 
Mich. 442, 51 N. W. 531; People 
V. Rockhill, 74 Hun, 241, 26 N. Y. 
Supp. 222; Fowler v. State, 3 Heislc 
154; Scott V. State. 46 Tex. Crim. 
Rep. 305, 81 S. W. 950; Ben v. 



1232 



EVIDENCE IN CRIMINAL CASES. [CHAP. XII. 



this has been applied as well to more serious crimes. Thus, 
where two or more persons are killed by the same act, and 
the state elects to prosecute for the killing of one, the accused 
can plead conviction or acquittal in bar of an indictment for 
killing the other.^ 

§ 591. Judgment on successive offenses. — A question of 
importance arises when there is a series of successive offenses 
of the same kind and character. It will not be contended that 
an acquittal or conviction for a Jiuisance to-day will bar a pros- 
ecution for a like nuisance on the same premises to-morrow ^ 
it will not be contended that a judgment for plaintiff for yes- 
terday's nuisance would be conclusive in a suit for to-day's 
nuisance; ^ nor that a judgment for yesterday's obstruction of 
a public highway would bar a suit brought for to-day's ob- 
struction; ^ nor, if a series of illegal sales of liquor were made 
yesterday, that a conviction or acquittal of the same would bar 
an action brought for a sale made to-day.* The weight of 



State, 22 Ala. 9, 58 Am. Dec. 2Z\. 
See contra, People v. Warren, 1 
Park. Crim. Rep. 338. 

2 People V. Warren, 1 Park. Crim. 
Rep. 338; Vaiighan v. Com. 2 Va. 
Cas. 273; Smith v. Com. 7 Gratt. 
593; State v. McClintock, 8 Iowa, 
203 ; State v. Stand if cr, 5 Port. 
(Ala.) 523. See Wharton, Crim. 
PI. & Pr. § 469. 

iSee Wharton, Crim. PL & Pr. 
§ 475 ; People v. To'vn.<;end, 3 Hill, 
479 ; Reg. v. Fairie, 8 El. & Bl. 486, 
4 Jur. N. S. 300, 6 Week. Rep. 55 ; 8 
Cox, C. C. 66. See Wharton, Ev. 
§§ 788, 789; Com. v. Connors, 116 
Mass. 35; Com. v. Hanley, 140 
Mass. 457. 5 N. E. 468; Com. v. 
Respass, 21 Ky. L. Rep. 140, 50 
S. W. 549; State ex rcl. Hohm v. 
Baker, 105 La. 373, 29 So. 940, 



Gormley v. State, 37 Ohio St. 120; 
State V. Cassety, 1 Rich L. 90. 

2 Richardson v. Boston. 19 How. 
263, 15 L. ed. 639. See Gormley v. 
State, 37 Ohio St. 120. 

3 Evelyn v. Haynes, cited in Tay- 
lor, Ev. § 1509; Cannery v. Brooke, 
73 Pa. 80 ; Chesapeake & O. R. Co. 
V. Com. 88 Ky. 368, US W 87. 

^ State V. Coombs, 32 Me 529; 
supra, § 581 ; State v. Shafer, 20 
Kan. 226 ; State v. Derichs, 42 Iowa, 
196; Com. v. Keefe, 7 Gray, 332; 
Com. V. Hudson, 14 Gray, 11 ; Com 
V. Goulet, 160 Mass. 276, 35 N. !•:. 
780 ; People v. Gaitlt, 104 Mich. 575. 
62 N. W. 724 ; Tucker v. Moultrie, 
122 Ga. 160, 50 S. E 61 ; Morton v 
State. 37 Te.x. Crim. Rep. 131, 3S 
S. W. 1019. 



§ 592] 



JUDGMENTS AND JUDICIAL RECORDS. 



1233 



authority is, then, that where one offense is selected from a 
series and prosecuted as a single offense, without reference to 
other offenses in the same series, that a conviction or acquit- 
tal of such an offense does not bar a prosecution for prior nor 
subsequent offenses relating to the same transaction ; ^ and 
where the question is whether or not a certain thing is a 
nuisance, or a certain act constitutes a trespass, and the ques- 
tion has been determined by a judgment for the plaintiff or 
the prosecution, as the case may be, then the accused is es- 
topped to deny, on a suit for a continuing offense, the fact 
that the thing complained of is a nuisance or a trespass.® 

§ 592. Question, how raised. — In criminal procedure 
the question of former jeopardy is presented to the court by 
way of special plea of autrefois acquit or autrefois convict} 
Such plea is regarded as an essential prerequisite to the intro- 
duction of the record of the trial procedure.^ In some states, 



5 Com. V. Campbell, 22 Pa. Super. 
Ct. 98; Morgan v. State, 119 Ga. 
964, 47 S. E. 567; St. Joseph v. 
Dienger, 165 Mo. 95, 65 S. W. 223 ; 
Nichols V. State, Z7 Tex. Crim. 
Rep. 616, 40 S. W. 502; Miller v. 
State, — Tex. Crim. Rep. — , 72 S. 
W. 856; United States v. Snow, 4 
Utah, 295, 9 Pac. 686; State v. 
Malone, 28 La. Ann. 80; State v. 
Ingraham, 96 Iowa. 278, 65 N. W. 
152. See State v. Kuhuke. 30 Kan. 
462, 2 Pac. 689; People v. SineU, 
131 N. Y. 571, 30 N. E. 47; People 
ex rel. Lichtenstein v. Hodgson, 
126 N. Y. 647, 27 N. E 378; State 
V. White, 146 N. C. 608, 60 S. K. 
505; Storm v. Territory, 12 Ariz. 
26, 94 Pac. 1099; Teague v. State, 
51 Tex. Crim. Rep. 523, 102 S. W. 
1142; Smith v. State, 55 Tex Crim. 
Rep. 320, 116 S. W. 593. 

Crim. Ev. Vol. II.— 78. 



Conviction or acquittal of of- 
fense as bar to prosecution for 
homicide in commission of offense, 
see note in 63 L.R.A. 405, and note 
in 14 L.R.A.(N.S.) 209. 

Acquittal of larceny as bar to 
prosecution for forgery in the same 
transaction, see note in 4 L.R.A. 
(N.S.) 402. 

6 Wharton, Crim. Law, 8th ed § 
475 ; Fozvle v. Nezv Haven & N. 
Co. 107 Mass. 352; Plate v. Nei;:, 
York C. R. Co. 37 N. Y. 472. 

^ For form of plea, see Whar- 
ton, Precedents, § 1150. 

2 2 Hale, P. C. 241 ; 2 Hawk. P. 
C. chap. 35 ; Reg. v. Crofts, 9 Car. 
& P. 219; State v. Barnes, 32 Mc. 
530 ; Com. v. Merrill. 8 Allen, 545 ; 
Com. V. Che.^ley, 107 Mass. 223; 
Solliday v. Com. 28 Pa. 13; None- 
maker v. State, 34 Ala. 211; Poster 



1234 



EVIDENCE IN CRIMINAL CASES. [CHAP. XII. 



by statute, the record can be offered in evidence under the 
plea of not guilty.^ 

§ 593. Parol evidence admissible to prove identity. — 

Even when the parties are the same, and the judgment prima 
facie admissible, it is always open to a party against whom 
such judgment is offered, to show, by parol or otherv/ise, that, 
notwithstanding this apparent identity, there is a difference 
in the points submitted in the two cases, either as to the offense 
or the offender. The issue thus raised as to identity is one of 
fact, which the jury must determine.^ So, substantial as well 
as formal identity may be shown by parol.^ The burden of 
disputing a prima facie case of identity is on the party dis- 
puting.^ But a point not at issue by the record cannot be 
shown by parol to have been decided by the case.* 



V. State, 39 Ala. 229; Mountain v. 
State, 40 Ala. 344 ; Rocco v. State, 
37 Miss. 357; Clem v. State, 42 Ind. 
420, 13 Am. Rep. 369; State v. 
Salge, 2 Nev. 321. See Wharton, 
Crim. PI. & Pr. §§ 477, et seq. ; su- 
pra, § 583b. 

^Clem V. State, 42 Tnd. 420, 13 
Am. Rep. 369. 

^Reg. V. Crofts, 9 Car. & P. 219, 
Rex V. Parry, 7 Car. & P. 836, 1 
Jur. 674; Ricardo v. Garcias, 12 
Clark & F. 368, 9 Jur. 1019; Reg. v. 
Bird, 2 Den. C. C. 94, 5 Cox, C. C. 
20; Aspden v. Nixon, 4 How. 467, 
11 L. ed. 1059; Goodrich v. Chi- 
cago, 5 Wall. 566, 18 L. ed. 511; 
Washington, A. & G. Steam Pack- 
et Co. V Sickles, 5 Wall. 580, IS 
L. ed. 550; Pest v. Smilie, 48 Vt. 
185 ; Piper v. Richardson, 9 Met. 
155; Com. v. Dillane, 31 Gray, 67; 
Leonard v. Whitney, 109 Mass. 
265; Com. v. Sutherland, 109 Mass. 



342; Smith v. Sherwood, 4 Conn. 
276, 10 Am. Dec. 143; People v. 
M'Gowan, 17 Wend. 386; Porter 
V. State, 17 Ind. 415 ; State v. Max- 
well, 51 Iowa, 314, 1 N. W. 666; 
Duncan v. Com. 6 Dana, 295 ; New- 
ton Mfg. Co. V. White, 47 Ga. 400 ; 
Chamberlain v. Gaillard, 26 Ala. 
504; Robinson v. Lane, 14 Smedes 
& M. 161 ; State v. Andrevcs. 27 Mo. 
267; State v. Small, 31 Mo. 197; 
State V. Thornton, 37 Mo. 350; su- 
pra, §§ 509-511. See Wliarton, Ev. 
§ 785. 

2 Wharton, Ev. § 795 

3 2 Hale, P. C. 241; Com. v. 
Daley, 4 Gray, 209; State v. Small, 
31 Mo. 197; State v. Thornton, 37 
Mo. 360; Wharton, Crim. PI. & Pr. 
§ 483. 

* Manny v. Harris, 2 Johns. 24, 3 
Am. Dec. 386; Jackson ex detn. 
Genet v. Wood, 3 Wend. 27. 



594] 



JUDGMENTS AND JUDICIAL RECORDS. 



1235 



11. When Judgment may be Impeached. 

§ 594. Collateral impeachment of judgment. — A pro- 
cedure before a court which, on the face of the record, has 
either no jurisdiction, or a jurisdiction which does not attach, 
is coram non judice, and may be impeached, even by the party 
in favor of whom the proceeding is instituted ; ^ a fortiori 
by the party against whom it is ofTered.^ An inferior court 
must show on the record that it had jurisdiction.' The same 
distinction holds good with respect to superior courts with 
limited statutory jurisdiction,* and with regard to courts of 
any class obviously transcending their powers.^ If the record, 
however, avers the facts necessary to constitute jurisdiction, 
such averments qannot (except in cases of fraud to be here- 



^Mercier v. Chace, 9 Allen, 242. 

2 Supra, § 571 ; Rex v. Chester, 
1 W. Bl. 25 ; Rex v. Washbrook, 4 
Barn. & C. 732, 7 Dowl. & R. 221 ; 
Rex V. Bowman, 6 Car. & P. 337 ; 
Briscoe v. Stephens, 2 Bing. 213, 9 
J. B. Moore. 413, 3 L. [. C. P. 257, 
27 Revised Rep. 597; Thompson v. 
Whitman, 18 Wall. 457. 21 L. ed. 
897; Hili V. Mendenhall, 21 Wall. 
453, 22 L. ed. 616; Penobscot R. 
Co. V. Weeks, 52 Me. 456 ; State v. 
Hodgkins, 42 N. H. 475; Com. v. 
Alderman, 4 Mass. 477; Com. v. 
Goddard, 13 Mass. 457 ; Borden v. 
Fitch, 15 Johns. 121, 8 Am. Dec. 
225; Latham v. Edgerton, 9 Cow. 
227; Gage v. Hill, 43 Barb. 44; 
State V. Cooper, 13 N. J. L. 361, 
25 Am. Dec. 490; Fisher v. Long- 
necker, 8 Pa. 410; Com. v. Myers, 

1 Va. Cas. 198; Wortham v. Com. 
5 Rand. (Va.) 669; James v. Smith, 

2 S. C. 183; Parish v. Parish, 32 
Ga. 653; Richardson v. Hunter, 23 



La. Ann. 255; State v. Payne, 4 
Mo. 376; Bonsall v. I sett, 14 Iowa, 
309; Mayo v. Ah Loy, 32 Cal. 477, 
91 Am. Dec. 595 ; Dorsey v. Ken- 
dall, 8 Bush, 294; North v. Moore, 
8 Kan. 143. 

^Harris v. Willis, 15 C. B. 710, 3 
C. L. R. 609, 24 L. J. C. P. N. S. 93, 
3 Week Rep. 238; Crawford v. 
Howard, 30 Me. 422; Clark v. 
Bryan, 16 Md. 171 ; Adams v. Tier- 
nan, 5 Dana, 394; Gray v. McNeal, 
12 Ga. 424. 

^Harris v. Hardeman, 14 How. 
334, 14 L. ed. 444; Morse v. Pres- 
by, 25 N. H. 299; Carleton v. Wash- 
ington Ins. Co. 35 N. H. 162 ; Hunt- 
ington V. Charlotte, 15 Vt. 46; Em- 
bury V. Conner, 3 N. Y. 511, 53 
Am. Dec. 325. See however Hahn 
V. Kelly, 34 Cal. 391, 94 Am. Dec. 
742; Tibbs v. Allen, 27 111. 119, 
Bigelow, Estoppel, 2d ed. 124. 

5 Windsor v. McVeigh, 93 U. S. 
274, 23 L. ed. 914. 



1236 



EVIDENCE IN CRIMINAL CASES, [ciiAP. XII. 



after noticed) be collaterally disputed by parties or privies.^ 
Nor, where the record shows jurisdiction (unless with the ex- 
ception already noticed) can parties or privies collaterally 
dispute the rulings of courts on questions of jurisdiction which 
were ruled against them at the timeJ 

§ 595. Impeachment of judgment for fraud. — Whenever 
a party seeks to avail himself of a former judgment, fraudu- 
lently entered, the opposite party may show the fraud and 
thus avoid the judgment. In criminal issues this is settled 
law. An acquittal or conviction a defendant manages to have 
fraudulently entered is no bar to a second prosecution.^ Fraud, 
however, must be substantively proved, or the prior judg- 
ment will be a bar.^ The burden is on the party setting up 
the fraud to show it.^ 



^ M'Cormick v. Sullivant, 10 
Wheat. 192, 6 L. ed. 300; Morse v. 
Preshy, 25 N. H. 299; Carleton v. 
WasJiington Ins. Co. 35 N. H. 
162; Coit V. Haven, 30 Conn. 190, 
79 Am. Dec. 244; Hartman v. Og- 
born, 54 Pa. 120, 93 Am. Dec. 679; 
Clark V. Bryan, 16 Md. 171; Sim- 
mons V. McKay, 5 Bush, 25 ; Cal- 
len V. Ellison, 13 Ohio St. 446, 82 
Am. Dec. 448; Moffitt, v. Moffitt, 69 
111. 641; Rice v. Brown, 77 III. 549; 
Hahn v. Kelly, 34 Cal. 391, 94 Am. 
Dec. 742; Sliarfy v. Brunning, 35 
Cal. 533; McCanley v. Fulton, 44 
Cal. 355; Smith v. Wood, 27 Tex. 
616. Though see Comstock v. 
Crawford, 3 Wall. 397, 18 L. ed. 
34. 

"i Sheldon v. Wright, 5 N. Y. 497; 
Fitzhugh v. McPherson, 9 Gill & J. 
51. 

^ Duchess of Kingston's Case, 20 
How. St. Tr. 544; Reg. v. Davis, 12 



Mod. 9; Rex v. Purser, Sayer, 90; 
State V. Little. 1 N. H. 257; State 
V. Brown, 16 Conn. 54; Com. v. 
Alderman, 4 Mass. 477; Com. v. 
Jackson, 2 Va. Cas. 501 ; Bulson v. 
People, 31 111. 409; State v. Green, 
16 Iowa, 239; Dunlap v. Cody, 31 
Iowa, 260, 7 Am. Rep. 129; Hul- 
vcrson v. Hutchinson, 39 Iowa, 316; 
State V. Davis, 4 Blackf . 345 ; Hal- 
loran v. State, 80 Ind. 586; State 
V. Simpson, 28 Minn. 66, 41 Am. 
Rep. 269, 9 N. W. 78; State v. Col- 
vin, 11 Humph. 599, 54 Am. Dec. 
58; Ellis V. Kelly, 8 Bush, 621; 
State V. Jones, 7 Ga. 422; State v. 
Cole, 48 Mo. 70. See State v. 
Lowry, 1 Swan, 34. 

^ State V. Casey, 44 N. C. (Bus- 
bee, L.) 209; State v. Tisdale, 19 
N. C. (2 Dev. & B. L.) 159; Bur- 
dett V. State, 9 Tex. 43. 

3 Supra, note 2; §§ 226, 590a; 



§§ 596, 596a] judgments and judicial records. 1237 

§ 595. Impeachment of judgment for want of jurisdic- 
tion. — A foreign judgment is impeachable for want of 
jurisdiction, and, hence, for want of personal service, within 
the jurisdiction, on the defendant, this being internationally 
essential to jurisdiction. Thus, where a settlement was made 
in England on a marriage between a Turk domiciled in Eng- 
land and an English lady, the former promising to reside al- 
ways in England, Hall, V. C, held that a Turkish court could 
not, by a decree of divorce pronounced without notice to the 
wife or other persons interested under the settlement, make 
void the settlement. So, it has been held that a foreign judg- 
ment can be contested, even by parties and privies, for fraud 
in its concoction; or for its flagrant violation of justice; or 
for nonidentity of subject-matter; or for incurable defective- 
ness or obscurity; or for manifest errors in its processes; or, 
generally, for any violation of the principles of international 
law.* 

§ 595a. When a conviction of crime may be im- 
peached. — A conviction of crime, when offered to dis- 
qualify a witness, cannot be impeached by him, by proof of 
his innocence, since the law is that it is the conviction that dis- 
qualifies.* The same rule obtains as to convictions when ad- 
mitted under statutes which permit convictions of infamous 
crimes to be introduced in order to discredit a witness.^ It 
is otherwise, however, when there is no such statute. Even 

post, § 596a. See Welch v. Man- case in 20 L.R.A. 668, and Fisher 

deville. 1 Wheat. 233, 4 L. ed. 79; v. Fielding, 67 Conn. 91, 52 Am. 

State ex rel. Cartwright v. Holmes, St. Rep. 270, 34 Atl. 714, with full 

69 Ind. 577. See supra, § 570a. annotations on the same case in 32 

1 Wharton, Ev. § 803. As to the L.R.A. 236. 

conclusiveness of judgments ren- ^ Supra, § 489. 

dered by a foreign court, see 2 Com. v. Gallagher, 126 Mass. 54. 

Dunstan v. Higgins, 13S N. Y. 70, See Bartholomew v. People, 104 

34 Am. St. Rep. 431, ZZ N. E. 729, IIL 601, 44 Am. Rep. 97. 
with full annotations on the same 



1238 EVIDENCE IN CRIMINAL CASES. [CHAP. XII. 

supposing that it is admissible at common law to put in evi- 
dence in order to discredit a witness, his conviction of a spe- 
cific crime, not involving perjury, the record, when admitted, 
is, so far as concerns the parties to the suit, res inter alios acta. 
and hence it is open to impeachment by proof of the witness's 
innocence.^ And a judgment, so far as it affects persons not 
parties to the record, and who could not have become parties, 
is res inter alios acta, and, if admissible at all, is open to im- 
peachment.* 

III. Administration and Probate. 

§ 597. Letters of administration as prima facie proof 
of facts. — Letters of administration are not, so far as con- 
cerns third parties, adequate proof of the fact of death of the 
alleged decedent; and when offered, even as between parties 
or privies, they may be rebutted and invalidated by proof that 
the party whom they declared to be dead was really alive.^ 

§ 598. Probate of will as prima facie proof. — A probate 
of a will is the judicial action of a court having jurisdiction, 
admitting a will as prima facie genuine and valid. Technically 
it is a copy of the will, sealed with the seal of the court of 
probate, and attached to a certificate that the will has been 
proved, and that administration of the goods of the deceased 
has been granted to one or more of the executors named, or, 
in default of executors, to administrators. A probate of a 
will is only prima facie proof of the validity of the will as 

^Sims V. Sims, 75 N. Y. 472, * Wharton. Ev. § 803. See Belt 

citing Maybee v. Avery, 18 Johns. v. State, 57 Md. 108; post, § 602. 

352 ; People v. Buckland, 13 Wend. ^ Wharton, Ev. § 810, and cases 

592. See Gibson v. M'Carty, Cas. there cited. See article in 14 A«. 

t. Hardw. 311; Mead v. Boston, 3 L, Rev. 2,27. 
Cush. 404; supra, §§ 439, 489. 



§§ 599, 600] JUDGMENTS AND JUDICIAL RECORDS. 1239 

against parties seeking to avoid it on ground of insanity,* or on 
the ground of other incompetency,^ or of imperfect execution.' 
And a person indicted for forging a will cannot set up the 
probate of the will as even prima facie a defense.* With 
regard to recitals (e. g., that of the presence of a party in 
court), a decree of a court of probate has been held to be 
prima facie evidence as to strangers,^ though this can only 
be good to prove the record action of the court. Such re- 
citals cannot be received to estop parties not served, but who 
should have been served.^ 

§ 599. Inquisition of lunacy prima facie proof. — In- 
quisitions of lunac}^ are necessarily ex parte, so far as concerns 
the person claimed to be a lunatic; since, on the assumption 
by which alone they have validity, he is a lunatic, and if a 
lunatic, he is not capable of putting in a valid appearance. 
Unless upon the hypothesis that such proceedings are in rem,^ 
they cannot be held admissible against strangers; and at the 
best make out only a prima facie case.^ 

IV. Judgments in Rem. 

§ 600. Effect of judgments in rem in criminal cases. — 
It is maintained by Mr. Taylor that whether a judgment in rem 
is conclusive in a criminal proceeding is a question which ad- 
mits of some doubt. "In the Duchess of Kingston's Case, the 

^ Marriot v. Marriot, 1 Strange, As to the effect and conclusive- 

671. ness of the probate of a will, see 

^Dickinson v. Hayes, 31 Conn. Sly v. Hunt, 159 Mass. 151, 21 

417. L.R.A. 680, 34 N. E. 187, 38 Am. 

3 Charles v. Hiiber, 78 Pa. 449. St. Rep. 403, and Martin v. Stovall, 

*Rex V. Buttery, Russ. & R. C. 103 Tenn. 1, 48 L.R.A. 130, 52 S. 

C. 342. W. 296. 

5 Sawyer v. Boyle, 21 Tex. 28. ^ See Wharton, Ev. § 817. 

See Loveil v. Arnold, 2 Mitnf. 167. 2 Wharton, Ev. § 599. 

^ Supra, § 594; Randolph v. 
Bsyue, 44 Cal. 366. 



1240 EVIDENCE IN CRIMINAL CASES. [CHAP. XII. 

judges express a decided opinion in the negative, — urging, 
first, that it would be contrary to pubhc pohcy that the tem- 
poral courts, in the investigation of a criminal charge, should 
be bound by a decision, perhaps, of an ecclesiastical judge, 
addressed only to the conscience of the party, and founded, 
as it might be, on evidence inadmissible at common law; and 
next, that if such a decision were conclusive in favor of a 
prisoner, it would be equally binding against him, and con- 
sequently, his life, liberty, property, and fame might depend 
upon the judgment of a court which had no organs to discover 
whether he had committed a crime or not.^ On the other hand, 
it has been contended that this opinion of the judges, when 
taken apart from the reasons on which it is founded, is not 
entitled to much weight, being merely an obiter dictum un- 
necessary for the decision of the points submitted to them;^ 
and then, in answer to the reasons, it is said that nothing can 
be more inconvenient or dangerous than a conflict of decisions 
between different courts; and that, if judgments in rem are 
not regarded as binding upon all courts alike, the most startling 
anomalies may occur." ^ And there are some intimations that 
judgments in rem bind in criminal as well as in civil suits.* 

V. Judgments Viewed Evidentially. 

§ 601. Judgments as evidence of prior conviction. — 
Former judgments in criminal proceedings should be admitted 
to prove facts relevant to the offense charged.^ Whenever 

As to conclusive effect of judg- 880, 14 L. J. Mag. Cas. N. S 177. 

ment against an insane person, see 9 Jur. 1075 ; Rex v. Grundon, Cowp. 

Spurlock V. Noe. 19 Ky. L. Rep. pt. 1, p. 315. 
1321, 39 L.R.A. 775, 43 S. W. 231. i See supra, §§ 570-573; Taues v. 

120 How. St. Tr. 540-543, 2 Buzzard, Hempst. 240. Fed. Cas. 

Smith, Lead. Cas. 642. No. 7,2C6a ; Parsons v. Cof>eland, 2>^ 

2 2 Smith. Lead. Cas. 676, 677. Me. 370, 54 Am. Dec. 628; Canon 

8 Taylor, Ev. § 1493. v. Abbot, 1 Root, 25L 

4 See Reg. v. Hickling, 7 Q. B. 



§ 601] JUDGMENTS AND JUDICIAL RECORDS. 1241 

such proceedings become material they should be shown by the 
record. Thus, in cases in which an offense is punished more 
severely on account of a former conviction, or where an in- 
creased penalty is attached to a second conviction for a like 
offense, it is necessary to produce evidence to establish the 
former conviction, to sustain the judgment of severer punish- 
ment or increased penalty. While the general rule is that 
such former conviction must be shown by the record, the ques- 
tion frequently arises whether or not such conviction must be 
averred in the indictment or information, or whether or not 
it must be established evidentially. It has been argued that 
it is a violation of the established principle that a man's char- 
acter and his previous acts cannot be shown in evidence until 
he has first offered character evidence,^ and also that such 
proof places the accused on trial for another oft'ense at the 
same trial, but these arguments have not been the controlling 
force, although both the rulings upon the law and the statutory 
provisions as to the proof of former convictions show evidence 
that the principles argued for have not been disregarded. An 
act of Parliament was passed declaring the common law, that 
is, that the prior conviction should not be submitted to the 
jury until they find the accused guilty of the immediate offense 
under trial,' and in many of the states similar restrictions 
exist. Whether or not the former conviction should appear 
by averment, or as a fact to be put in evidence, depends upon 
the terms of the statute. Where the jury is called upon to 
find generally guilty or not guilty, leaving the punishment to be 
fixed by the court, then it is reasonable to assert that the 
jury has nothing to do with the prior conviction, but that 
such fact can only be made to appear as a basis for the ad- 
ditional sentence imposed by the act; but where the jury, by 
their verdict, pass upon all the issues and fix the punishment, 

2 Supra, §§ 59-61. 21 L. T. N. S. 469, 18 Week. Rep. 

^Reg. V. Martin, L. R. 1 C. C. 72, 11 Cox, C. C. 343; Reg. v. Key, 

314, 39 L. J. Mag. Cas. N. S. 31, 5 Cox, C. C. 369. 2 Den. C. C. 347. 



1242 



EVIDENCE IN CRIMINAL CASES. [CHAP. XII. 



then the former conviction is of substance, and it is reasonable 
to aver it in the indictment or to prove it as a fact in evidence. 
In this case the former conviction goes to the jury as a part 
of the record, and one of the essential allegations is identity 
of the accused, upon which question the jury must pass.* Such 
statutes have been held to be constitutional, and not violative 
of the provision against compelling the accused to be a witness 
against himself, or of being twice in jeopardy for the same 
offense.^ But such statutes do not dispense with the sub- 
stantive rules of the law as to evidence. Thus, evidence of a 
distinct crime not averred in the indictment, nor necessarily 
connected with the offense charged, cannot be received to in- 
crease the statutory penalty.^ The record of a former convic- 
tion is inadmissible without the production of the indictment 
on which it was based,' but this ruling has not been generally 
followed, and courts have allowed proof of former convictions 
in varying degrees, and in accord with the provisions and con- 
structions of the local statute.^ 



^Maguire v. State, 47 Md. 497; 
Thomas v. Com. 22 Gratt. 912. See 
Tuttle V. Com. 2 Gray, 505 ; John- 
son V. People, 65 Barb. 342; Smith 
V. Com. 14 Serg. & R. 69; Hiiies v. 
State, 26 Ga. 614. See State v. 
Dolan, 69 Me. 573 ; People v. King, 
64 Cal. 33S, 30 Pac. 1028; State v. 
Hudson, 32 La. Ann. 1052; Com. 
V. Morrow, 9 Phila. 583 ; Com. v. 
Hagan, 10 Pa. Co. Ct. 22; State v. 
Freeman, 27 Vt. 523. See State v. 
Hayues,35 Vt. 570; State v. Spauld- 
ing. 61 Vt. 505, 17 Atl. 844; People 
V. Price, 6 N. Y. Crim. Rep. 141, 2 
N. Y. Supp. 414 ; People v. Carlton, 
57 Cal. 559 (where prior conviction 
is charged in the indictment, such 
prior conviction may be considered 
as though charged in the informa- 
tion). 



5 People V. Coleman, 145 Cal. 609. 
79 Pac. 283; Hemdon v. Com. 105 
Ky. 197. 88 Am. St. Rep. 303. 48 
S. W. 989; White v. Com. 20 Ky. 
L. Rep. 1942, 50 S. W. 678; Mc- 
Donald V. Com. 173 Mass. 322, 7i 
Am. St. Rep. 293, 53 N. E. 874; 
IVhorton v. Com. 7 Ky. L. Rep. 
826; Com. v. Phillips, 11 Pick. 28. 
See Stover v. Com. 92 Va. 780, 22 
S. E. 874; King v. Lynn, 90 Va. 
345, 18 S. E. 439; Re Mallon, U 
Idaho, 737, 22 L.R.A.(N.S.) 1123, 
102 Pac. 374. 

^Ingram v. State, 39 Ala. 247, S4 
Am. Dec. 782. 

' Cross V. State, 78 Ala. 430. 

8 See Rector v. Com. 80 Ky. 468; 
State r. Brown, 115 Mo. 409, 22 S. 
W. 367; State v. Smith, 129 Iowa, 
709, 4 L.R.A.(N.S.) 539, 106 N. W. 



§ 602] 



JUDGMENTS AND JUDICIAL RECORDS. 



1243 



§ 602. Judgment of conviction of principal, evidence 
against accessory. — As at common law the conviction of 
the principal is a condition precedent to the conviction of the 
accessory, it is necessary, on the trial of the accessory, to put 
in evidence the record of the conviction of the principal. This 
record is, however, only prima facie proof of the guilt of 
the principal, and may be impeached by proof that such con- 
viction was erroneous.^ Judgment must have been entered 
on the verdict to make the record admissible.^ The burden of 
proving that the principal was not guilty is on the accessory,' 
but the accessory is not restricted to proof of facts shown on 
the former trial.* On the other hand, it is admissible for the 
prosecution to put in evidence the facts tending to show the 



187, 6 A. & E. Ann. Cas. 1023; 
State V. Volmer, 6 Kan. 379 (for- 
mer conviction pending on appeal 
not admissible to prove accused 
guilty of a second offense) ; State 
V. Cox, 69 N. H. 246, 41 Atl. 862 
(original complaint, with clerk's 
indorsement, on plea of guilty and 
fine imposed, is competent to prove 
former conviction). See Tall v. 
Com. 2Z Ky. L. Rep. 541, 110 S. W. 
425 ("record" proof of former con- 
viction held only to include verdict, 
judgment, and sentence) ; State v. 
Payne, 223 Mo. 112, 122 S. W. 1062. 
See State v. Court, 225 Mo. 609, 
125 S. W. 451; People use of State 
Bd. of Health v. Koehlcr, 146 111. 
App. 541 ; People v. Sickles, 156 N. 
Y. 541, 51 N. E. 288, 26 App. Div. 
470, 13 N. Y. Crim. Rep. 138, 50 
N. Y. Supp. Z77. (It is held in 
New York that where the accused 
is indicted for a crime charged as 
a second offense, and pleads not 
guilty, the first conviction must be 
proved, although, before the jury 



was impaneled, the accused admit- 
ted the first comviction, the rule 
being that the plea of guilty puts 
in issue every material averment of 
the indictment, and an admission 
of part of the charges does not re- 
strict the jury to the other charges 
only.) 

^Rex V. Turner, 1 Moody C. C 
347; Ratcliffe's Case, 1 Lewin, C. 
C. 121 ; United States v. Hartwell, 
3 Cliff. 221. Fed. Cas. No. 15,318; 
State V. Richer. 29 Me. 84; State v. 
Rand, 33 N. H. 216; Com. v. Knapp, 
10 Pick. 477, 20 Am. Dec. 534; Peo- 
ple V. Buckland, 13 Wend. 592; An- 
derson v. State, 63 Ga. 675 ; Keithle>- 
V. State, 10 Smedes & M. 192 ; Levy 
V. People, 80 N. Y. 329; Coleman 
V. People, 55 N. Y. 81. 

^ State V. Duncan, 28 N. C. (6 
Ired. L.) 236. 

3 Com. V. Knapp, 10 Pick. 484, 20 
Am. Dec. 534; State v. Chittem, 13 
N.C. (2 Dev. L.) 49; State v. 
Duncan, 28 N. C. (6 Ired. L.) 236. 

* State V. Sims, 2 Bail. L. 29. 



1244 EVIDENCE IN CRIMINAL CASES. [CHAP. XII. 

principal's guilt. ^ In most jurisdictions proof of such con- 
viction is, by statute, no longer necessary in order to convict 
the accomplice or accessory.^ 

§ 602a. Judgments as evidence to establish facts. — A 
prior judgment may be also admissible as a part of the evidence 
on v^-hich the case for or against the defendant may be made 
out.'^ This is eminently the case in proceedings for perjury, 
in which the record of the trial at which the alleged perjury 
was committed is admissible as inducement, though not to 
prove the perjury.^ And on indictment for escape, it is neces- 
sary, if the person escaped was a convict, to put in evidence 
his conviction.^ It has also been held that on the trial of 
an indictment for manslaughter, tlie record of a conviction of 
the defendant for the assault which caused death (the deceased 
having died after such conviction) is conclusive evidence that 
the assault was unjustifiable.* 

It may be relevant, also, to prove a former offense com- 
mitted by the defendant, as part of a system of crime of which 
the offense under trial is another part.^ If so, it is admissible 
to put in evidence the defendant's conviction of the former of- 
fense.^ Where, also, the oft'ense charged is that of being 
a common thief, a prior conviction of the defendant in the 

^ Levy V. People, 80 N. Y. 329; 390; Davies v. Lowndes, 1 Bing. N. 

21 Alb. L. J. 313; post, § 702. C. 607; Com. v. Miller, 2 Ashm. 

6 Wharton, Crim. Law, 8th ed. (Pa.) 61; Kyle v. State, 10 Ala. 

§ 237 ; Hatchett v. Com. 75 Va. 92.S. 236. 

^Com. V. M'Pil;e,3 Cush. 1«1, 50 ^ Com. v. Evans, 101 Mass. 25; 

Am. Dec. 727. Com. v. Roby, 12 Pick. 496; Com. 

^Reg. V. Christian, Car. & M. v. Cutler, 9 Allen, 486. See also 

388; Reg. v. Browne. 3 Car. & P. Reg. v. Salvi, 10 Cox, C. C. 481, 

572, Moody & M. 315; Rex v. lies, note (and see post, § 585) ; Com. 

Buller, N. P. 243; Rex v. Stoveld, v. M'Pikc, 3 Cush. 181, 50 Am. Dec. 

6 Car. & P. 489; Brown v. State, 47 727; Com. v. Austin. 97 Mass. 595. 

Ala. 47. ^ Dubose v. State, 13 Tex. App 

3 Rex V. Shaw, Russ. & R. C. C. 418. 

526; Reg. v. Waters, 12 Cox, C. C. ^ State v. Neagle, 65 Me. 468. 



§ 603] 



JUDGMENTS AND JUDICIAL RECORDS. 



1245 



same jurisdiction, of larceny, is admissible as part of the case 
of the prosecution.' And a record of conviction of the de- 
fendant in the same jurisdiction, being an adjudication in 
which the same parties were litigant, may be conclusive when 
showing a relevant fact.* 

§ 603. To prove judgment, record must be complete. — 
If the object of the evidence be to prove a particular judicial 
result, e. g., the entering of a judgment, it is not enough to 
have a certificate of the result. The whole record, so far as 
it concerns the formal stages, must be either produced or 
exemplified, and if exemplified, the exemplification must show 
on its face that the record is complete.-^ The component parts 



7 World V. State, 50 Md. 49. 

8 Com. V. Evans, 101 Mass. 25 ; 
Phillips V. Fadden, 125 Mass. 198; 
Com. V. Feldman, 131 Mass. 588. 
See Brimet v. State, 12 Tex. App. 
521. 

iSee supra, §§ 179, 184, 195; Rex 
V. Smith, 8 Barn. & C. 341, 6 L. J. 
Mag. Cas. 99; Godefroy v. Jay, 3 
Car. & P. 192; R. v. Robinson, 1 
Craw. & D. C. C. (Ir.) 329; Porter 
V. Cooper, 6 Car. & P. 354, 1 Cromp. 
M. & R. 387, 4 Tyrw. 456 ; King v. 
Birch, 3 Q. B. 431, 2 Gale & D. 513. 
11 L. J. Q. B. N. S. 183 ; Jay v. East 
Livermore, 56 Me. 107; Hazvks v. 
Truesdell, 99 Mass. 557; Davidson 
V. Murphy, U Conn. 213; Belden v. 
Meeker, 2 Lans. 470; Com. v. Trout, 
76 Pa. 379; Numbers v. Shelly, 78 
Pa. 426; Carrick v. Armstrong, 2 
Coldw. 265; Evans v. Reed, 2 Mich. 
N. P. 212; Sternhurg v. Callanan, 
14 Iowa, 251; Smith v. Smith, 22 
Iowa, 516; Miles v. Wingate, 6 Ind. 
458; Miller v. Deaver, 30 Ind. 371; 



Young v. Thompson, 14 111. 380; 
Oliver v. Persons, 30 Ga. 391, 76 
Am. Dec. 657; Mitchell v. Mitchell, 
40 Ga. 11 ; HaUet v. Eslava, 3 Stew. 
& P. (Ala.) 105; Anderson v. Co.r, 
6 La. Ann. 9; Loper v. State. 3 
How. (Miss.) 429; IVash v. Foster. 
3 Mo. 205 ; Mason v. Wolff, 40 Cal. 
246 ; Ogden v. Walters, 12 Kan. 282. 

In Black on Judgments 2d ed., 
the definition of the judgment roll 
or record is thus concisely stated: 

"It seems appropriate, in this 
connection, to give some account of 
the judgment roll or record of the 
judgment. At common law the 
judgment roll was a roll of parch- 
ment upon which all the proceed- 
ings in the cause, up to the issue, 
and the award of venire inclusive 
together with the judgment which 
the court awarded in the cause, 
were entered. It included as well 
the pleadings and process as the 
signing of the judgment. In our 
modern practice, the proceedings 
are not thus transcribed, although 



1246 



EVIDENCE IN CRIMINAL CASES. [CHAP. XII. 



of the record should be so attached that it will appear that 
the certificate extends to them all.^ A certificate that a tran- 
script is true and perfect, enumerating all the usual parts of 
a record, is sufficient.^ But a complete extension of the record 
will not be exacted when all that is substantial appears,* 
though if the judgment of a court is put in evidence to effect 
a transfer of rights, the preliminary conditions of the judg- 



in some states they are required to 
be copied with more or less detail 
into books kept for that purpose, 
and in others a judgment roll, con- 
sisting of the writ, pleadings, and 
other papers in the cause, must be 
on file when the clerk enters judg- 
ment. And for the purpose of an 
appeal, or other similar use, the 
record comprises a full copy of all 
the papers and proceedings in the 
cause. The following account of 
the practice obtaining in Illinois 
will be found applicable in many 
of the states : 'Under our practice, 
while the pleadings, process, etc.. 
are not, as at common law, required 
to be copied on a parchment roll, 
nor in the record book in which 
final judgment is entered, they are 
required to be filed in the office of 
the clerk ; and when a copy of the 
record of the judgment is required, 
for the purpose of bringing the case 
by appeal or writ of error into this 
court, or bringing suit upon it in 
another state, or as evidence under 
an issue of mil tiel record, or to 
establish a former adjudication of 
the same subject-matter between 
the same parties, and indeed in all 
cases where it is essential to have 
a complete record of a judgment, 
the pleadings and process are an 



indispensable part of it. And the 
general rule is that where the copy 
of a record of a judgment is re- 
quired, it must be of the whole rec- 
ord, so that the court may deter- 
mine the legal effect of the whole 
of it, which may be quite different 
from that of a part.' In Massa- 
chusetts the clerk's docket is the 
record of the court, until the record 
is fully extended, and every entry 
upon it is the statement of an act 
of the court, which is presumed to 
be made by its direction, in pur- 
suance either of an order for the 
particular entry, or of a general 
order, or of a general usage pre- 
supposing such an order. A record, 
it will be remembered, imports ab- 
solute verity, must be tried by it- 
self, and cannot be contradicted." 

2 Susquehanna & H. Valley R. & 
Coal Co. V. Quick, 68 Pa. 189; 
Herndon v. Givens, 16 Ala. 261. 

3 Coffee V. Neely, 2 Heisk. 304. 

* See supra, § 179 ; Reg. v. New- 
man, 2 Den. C. C. 390, 3 Car. & K. 
240, 21 L. J. Mag. Cas. N. S. 75, 
16 Jur. Ill, 5 Cox, C. C. 547; 
Knapp V. Abell, 10 Allen, 485; 
Brainard v. Fowler, 119 Mass. 262, 
Morton, J.; Haynes v. Cowen, 15 
Kan. 637. 



§ 604] 



JUDGMENTS AND JUDICIAL RECORDS. 



1247 



ment must, in some shape, appear on the record. Even a 
sentence in admiralty, to sustain its admissibiHty for such pur- 
pose, must have attached to it the prehminary proceedings on 
which it is based; ^ and a judgment of an ecclesiastical or pro- 
bate court cannot prove title without producing the libel and 
answer, and the defensive allegations.^ And to sustain a plea 
of autrefois convict, the record must show an unarrested 
judgment.' 

§ 604. Journals of court admissible to prove actions of 
court. — The journals of a court, in those jurisdictions 
where such journals are kept, though not technically part of 
the record, are to be regarded as proof, when duly verified, of 
the action of the court in any matter to which they relate. 
They are, therefore, admissible, in any view, provisionally.* 
In such case, the object being to show that some other pro- 
ceeding has occurred before the same court, a minute of the 
former proceeding will be admitted in lieu of the record, when- 
ever the formal record cannot be presumed to have been made 
up.'' The minutes of a court, however, cannot be introduced 
to contradict a record.' Nor is the entry on the docket of a 
presiding judge, such entry not being in his handwriting, nor 
part of the record, admissible to prove the entering of a 
nolle prosequi.^ 



5 Comyns's Dig. Ev. chap. 1 ; 
Taylor, Ev. § 1411. 

^ Leake v. JVestmeath, 2 Moody 
& R. 394, per Tindal, Ch. J., over- 
ruling Stedman v. Gooch, 1 Esp. 6. 

' State V. Sherburne, 58 N. H. 
535. 

1 Rex V. Browne, 3 Car. & P. 572. 

2 Tooke's Trial, 25 How. St. Tr. 
446-449. Recognized in Rex v. 
Smith, 8 Barn. & C. 343, 6 L. J. 
Mag. Cas. 99; R. v. Robinson, 1 



Craw. & D. C. C. (Ir.) 329; R. v. 
Reilly, Ir. Cir. R. 795, per Doherty, 
Ch. J.; supra, § 231. See Fit's- 
patrick V. Fitspatrick, 6 R. I. 64, 75 
Am. Dec. 681 ; Grosvenor v. Tar- 
box, 39 Me. 129; Wilkins v. Ander- 
son, 11 Pa. 399. 

3 Den ex dent. Newcomb v. Dow- 
nam, 13 N. J. L. 135 ; Mandeville v. 
Stocked, 28 Miss. 398. See Strong 
V. Bradley, 13 Vt. 9. 

4 Smith V. State, 62 Ala. 29. 



1248 EVIDENCE IN CRIMINAL CASES. [CHAP. XII. 

§ 605. Docket entries not admissible when full record 
can be had. — What has been said of the minutes of the 
court applies a fortiori to the docket entries, regularly entered 
by the clerk or prothonotary/ which give the details from 
which the record is made up, and which can be received in 
place of the record until it is made up.^ In many jurisdictions, 
the docket, which contains the substantial parts of the record, 
is regarded as its substitute until such time as a full record 
is required for removal to a superior court.^ Even after a 
record is extended, if it be lost, the docket entries become 
primary.* 

The docket entries, when lost, can be proved by parol.* 

§ 606. When ancient documents may be proved in frag- 
ments. — An ancient record, taken from the proper deposi- 
tary, may be proved in fragments, when no fuller proof is 
attainable.^ It is otherwise, however, when the fragments 
offered have no internal evidence of authority.* 

§ 607. When portions of a record may be admitted as 
evidence. — It frequently happens, as is elsewhere inciden- 

^Com. V. Bolkom, 3 Pick. 281; 107; Willard v. Harvey, 24 N. H. 

Townsend v. IVay, 5 Allen, 426; 344; Hamilton v. Com. 16 Pa. 129, 

Keller V. Killion, 9 Iowa, 329; Preu- 55 Am. Dec. 485; State v. Hines, 

tiss V. Holbrook, 2 Mich. 372; Hair 68 Me. 202. 

V. Melvin, 47 N. C. (2 Jones, L.) * Wharton, Ev. § 605. 

59; Handley v. Russell. Hardin ^ Pruden v. Alden, 23 Pick. 187, 

(Ky.) 145. 34 Am. Dec. 51; Tillotson v. IVar- 

2 Wharton, Ev. § 826; State v. M^r, 3 Gray, 574. See Wharton, Ev. 

Neagle, 65 Me. 468; Com. v. IVey- § 135. 

mouth, 2 Allen, 144, 79 Am. Dec. i See Wharton, Ev. § 136. 
776; Boyd v. Com. 36 Pa. 355 
Boteler v. State, 8 Gill & J. 359 
Wcighorst v. State, 7 Md. 446 



2 Taylor, Ev. § 1423, citing Evans 
V. Taylor, 7 Ad. & El. 617, 3 Nev. 
& P. 174, 7 L. J. Q. B. N. S. 73, 



Maguire v. State, 47 Md. 497. Vaux Barony Min. Ev. 67; Leigh- 

^ Jay V. East Livermore, 56 Me. ton v. Leighton, 1 Strange, 308. 



§ 608] JUDGMENTS AND JUDICIAL RECORDS. 1249 

tally noticed/ that record proof is appealed to merely to estab- 
lish evidentially (as distinguished from dispositively, or from 
estoppel) some circumstance relevent to the case.^ Thus the 
object of the evidence may be merely to prove the fact of a 
former trial, and in such case, on an indictment for perjury 
committed at such trial, it has been held that the production 
by the officer of the court of the caption, the indictment with 
the indorsement of the prisoner's plea, the verdict and the 
sentence of the court upon it, is sufficient, without the produc- 
tion of the record.^ Or again, the object is to prove that 
A B was resident at C at the particular time. As an item of 
proof in such a case, it is admissible to put in evidence a 
justice's process, of the date in question, in favor of A B, of 
C* If the object is to prove an arrest or attachment, the 
officer's return to this effect establishes a prima facie case. 
And, generally, when the object is to introduce certain record 
facts as part of the indicatory evidence of a case (e. g., to 
show that a certain writ issued, or was returned in a particular 
way), then the pertinent portions of a record may be certified 
and put in evidence separately.^ 

§ 608. Portions of records must be complete in them- 
selves. — In order, however, to admit separate portions of 
record to prove certain facts, they must be shown to be com- 
plete in their relation to such facts. ^ Thus, if the object be to 

1 Supra, §§ 570, 602. ' Reg. v. Newman, 2 Den. C. C. 

2 See Blower v. Hollis, Car. & M. 390, 3 Car. & K. 240, 21 L. J. Mag. 
396, 3 Tyrw. 356, 2 L. J. Exch. N. Cas. N. S. 75, 16 Jur. 111. 5 Cox, 
S. 176; Leake v. Westmeath, 2 C. C. 547. 

Moody & R. 397; Attzvood v. Tay- ^Cavendish v. Troy, 41 Vt. 99. 

lor, 1 Mann. & G. 289, 1 Scott. N. See supra, § 570. 

R. 611; Benedict v. Heincherg, 43 5 wharton, Ev. § 828; World v. 

Vt. 231 ; Lee v. Stiles, 21 Conn. 500; State, 50 Md. 49; supra, § 602a. 

Whilmore v. Johnson, 10 Humph. 1 Buford v. Hickman, Hempst. 

610; Smith v. Pattison, 45 Miss. 232, Fed. Cas. No. 2,114a; Glenn v. 

619; Watts V. Clegg,4S Ala. 561. Garrison, 17 N. J. L. 1; Kendrick 
Crim. Ev. Vol. II.— 79. 



1250 EVIDENCE IN CRIMINAL CASES. [CHAP XII. 

show that a search warrant legally issued, it must appear that 
it was preceded by the proper oath; ^ if the object is to prove 
service of process, an officer's return must be set forth.^ It 
is also stated that writs and warrants, before their return, must 
be proved by actual production, though after their return, 
when they become matters of record, they are provable by 
copies.^ 

§ 609. When verdict is admissible as an evidentiary 
fact. — When the object of proving a verdict is the refresh- 
ing the memory of a witness, or forming one of the links of 
the chain of circumstantial evidence in a matter collateral to 
the merits of the verdict, the verdict may be put in evidence 
as a mere evidentiary fact, not as in any way showing that 
it was true, but simply as proving that it was taken.^ For the 
purpose of proving reputation, a verdict, without judgment, 
has been held admissible, even against strangers, when the 
verdict goes directly to reputation. But this holds good only 
as to ancient verdicts, and such as have been acquiesced in 
by the parties ; and, as a general rule, a verdict cannot be put 
in evidence unless judgment has been entered on it.^ In 
criminal cases, however, as we have seen, a verdict of ac- 
quittal operates as a bar without a judgment; and so, under 
certain conditions, does a verdict of conviction.' 

§ 610. When portions of ancient records may be re- 
ceived in evidence. — As has been already incidentally 

V. Kendrick, 4 J. J. Marsh. 241 ; l Tooke's Trial, 25 How. St. Tr. 

Welch V. Walker, 4 Port. (Ala.) 446; Rex v. Smith, 8 Barn. & C. 

120; Vassault v. Austin, 32 Cal. 597. 343. 6 L. J. Mag. Cas. 99; Wharton, 

^Halstcd V. Brice, 13 Mc 171. Ev. § 824, note 7, § 825 

^ Peers v. Carter, 4 Litt. (Ky.) 2 See Wharton, Ev. § 831; Reg. 

268; Lyme v. Bank of Kentucky, 5 V. Meek, 9 Car. & P. 513. 

J. J. Marsh, 545. 3 Supra, § 574. 

* Taylor, Ev. § 1424, citing Dul- 
ler, N. P. 234. 



§611] JUDGMENTS AND JUDICIAL RECORDS. 1251 

observed,^ when a record is ancient, and when its imperfect 
condition is to be ascribed to the usual deteriorating effects of 
time, it is admissible to prove such portions of it as are at- 
tainable, imperfect as they may be. It is essential, however, 
that such documents should have been produced from the 
proper office, and should on their face exhibit prima facie 
evidence of regularity. When lost, such records may be sup- 
plied by parol.^ 

§ 611. Return of officer as evidence of facts. — An of- 
ficer's return in execution of a writ may be admissible for the 
following purposes : 

1. As a link in title, or in any other way as a basis of suit.^ 

2. As binding the officer making it. In such case the return 
is a solemn admission, conclusive against the officer and his 
privies. He may, however, put in evidence supplementary 
facts,^ not inconsistent with his return,^ When offered in the 
officer's favor, however, the return is but prima facie proof 
of its contents.* 

3. As binding the parties. A party issuing a writ is also 
bound by it, and is ordinarily estopped from disputing its 
averments.* So far as concerns such parties, the verity of 
the returns of the officers cannot, as we have seen, be disputed 
collaterally. The redress must be by application to the court 
from which the execution issues.^ When, however, a return 
is ambiguous, it may be explained by parol.'' 

4. As proving its legal effects. A return may be put in 
evidence against strangers to prove that it issued ; or to prove, 

^ Supra, § 606. * Freeman, Executions, § 366. 

2 Wharton, Ev. § 833; supra. 5 Wharton, Ev. § 834. 

§§ 2nt. 606. 6 Wharton, Ev. § 834. See Free- 

1 Wharton, Ev. § 833; post, § 642. man. Executions, § 364. 

2 Post, §614. 7 Wharton, Ev. § 834; Herman, 

3 Wharton, Ev. § 834. ' Executions, §§ 240, 244, 295. 



1252 EVIDENCE IN CRIMINAL CASES. [CHAP XII. 

in the same manner as may a judgment, its legal effects.® But 
when used to effect the interest of strangers, such returns, so 
far as concerns facts which it is the duty of the officer to 
state, are only prima facie evidence at the best, and as to 
other facts are not evidence at all.^ 

§ 612. Return of execution as evidence of insolvency. — 

A fi. fa. returned nulla bona, or returned in such a way as to 
indicate insolvency in the execution defendant, may be ad- 
missible as prima facie proof in a link in the evidence to 
prove such insolvency. To the execution, however, it has been 
held proper that the record should be attached; and even if 
this be dispensed with, the execution must have the seal of 
the court. Proceedings in insolvency are in like manner ad- 
missible to prove, in collateral proceedings, the debtor's in- 
solvency.^ 

VI. Records as Admissions. 

§ 613. Judgment as evidence of an admission or con- 
fession. — A judgment has an evidentiary character when 
it involves an admission against the interest of the party 
against whom it is offered,^ and, in criminal cases, where the 
accused plead guilty, the record showing the plea can be of- 
fered in evidence in a civil proceeding growing out of the 
same offense, but in such cases the record is admitted not as a 
judgment establishing the fact, but as the deliberate confes- 
sion or admission of the accused himself acknowledging the 
fact.2 

8 See Wharton, Ev. §§ 822-824, v. Seybert, 12 Pa. 101 ; McDermoH 
834. V. Hoffman, 70 Pa. 52. 

9 Wharton, Ev. § 833; post, § 642. ^ Myers v. Maryland Casualty Co. 
1 Wharton. Ev. § 834. 123 Mo. App. 682, 101 S. W. 124; 
1 Post, §§ 638, et seq. ; Boston v. Mead v. Boston, 3 Cush. 404; Ja- 

Richardson, 13 Allen, 146; Truby cob's Fisher's Dig. Judgment, col. 



§§ 614, 615] JUDGMENTS AND JUDICIAL RECORDS. 1253 

§ 614. Conclusive effect of an officer's return on a 
writ. — When an officer, or his sureties, is sued on his re- 
turn, then such return is conclusive against him so far as it 
involves admission of the reception of goods by himself; and 
the same rule holds on criminal proceedings against him on 
his return.^ A party, also, who has obtained possession of 
property by decree of court solemnly prayed for by himself 
cannot afterwards, in a suit against him to recover claims on 
such property, deny the ownership. And a party may preclude 
himself from offering evidence inconsistent with the attitude 
assumed by him in a particular suit, as where, on demurrer, 
he is precluded from disputing facts the demurrer admits,^ or 
where, after one plea is entered, a repugnant plea will not be 
received.' But this does not prevent the entering of successive 
pleas tentatively.* 

§ 615. Pleadings filed in civil actions as evidence of ad- 
missions; exception. — The pleadings of a party in one suit 
may be used in evidence against him in another, not as estop- 
pel, but as proof, open to rebuttal and explanation, that he 
admitted certain facts. But in order to bring such admission 
home to him, the pleading must be either signed by him, or it 
must appear that it was within the scope of the attorney's 
authority to admit such facts.^ Yet even if such admissions 

7930; Corzvin v. Walton, 18 Mo. 199; Com. v. Norton, 9 Pick. 206. 

71, 59 Am. Dec. 285 ; Green v. See also Birchard v. Booth, 4 Wis. 

Bedell, 48 N. H. 546; Birchard v. 67, supra. 

Booth, 4 Wis. 67 ; Bradley v. Brad- ^ Wharton, Ev. § 837 ; supra, 

ley, 11 Me. 367; Crawford v. Bcr- % 611; post, §§ 638, 639. 

gen, 91 Iowa, 675, 60 N. W. 205; 2 See Wharton, Crim. PI. & Pr. 

Clark V. Irvin, 9 Ohio, 131 ; Ru- § 400. 

dolf^h V. Landzvcrlen, 92 Ind. 34 ; 3 Wharton, Crim. PI. & Pr. § 419. 

Young v. Cop fie, 52 111. App. 547; « Wharton, Crim. PI. & Pr. § 420; 

Schreiner v. High Ct. C. O. F. 35 Wharton, Ev. § 837. 

Hi. App. 576; Albrecht v. State, 62 i Post, § 697 

Miss. 516; Webb v. State, 4 Coldw. 



1254 EVIDENCE IN CRIMINAL CASES. [CHAP XII, 

are thus brought home to the party, they are entitled to little 
weight.^ A plea of guilty in a criminal issue, however, being 
presumed to be solemnly entered by the defendant himself, 
may be put in evidence against him as a confession of the fact, 
in a civil issue.^ And a plea verified by affidavit, or an answer 
in chancery, may be properly viewed as a solemn admission ; * 
though the party must have been capable of binding himself 
by the plea; and hence a person cannot be made responsible 
criminally for a plea made by him when incompetent by reason 
of infancy.^ A plea in abatement filed by a party in a par- 
ticular suit, on which there is judgment in his favor, estops 
him from afterwards denying the facts set up in the plea.^ 
But dilatory pleas, and pleas on which no judgment in favor 
of the party pleading is entered, are always rebuttable.'' But 
there is generally a provision in all civil practice acts and civil 
codes of procedure that no pleading can be used in a criminal 
prosecution as evidence of a fact admitted or alleged in such 
pleading. 

§ 616. Admission by demurrer. — A "demurrer only ad- 
mits the facts which are well pleaded; it does not admit the 
accuracy of an alleged construction of an instrument when 
the instrument is set forth in the record, if the alleged con- 
struction is not supported by the terms of the instrument." ^ 

2 Post, §§ 638-642. See Wharton, 6 Wharton, Crim. PI. & Pr. § 425 ; 
Ev. § 838. supra, § 94. 

3 Supra, § 577; Anonymous, cited 'See Wharton, Ev. § 838; Coin. 
in Phillipps, Ev. 25; Reg. v. Fon- v. Lannan, 13 Allen, 563; post, 
taine Moreau, 11 Q. B. 1033; Brad- §§ 639-641. 

ley V. Bradley, 11 Me. 367; Green v. '^Clifford, J., Gould v. Evansville 

Bedell. 48 N."h. 546; Clark v. Irvhi, & C. R. Co. 91 U. S. 53d. 23 L. ed. 

9 Ohio, 131. See Wharton, Ev. 419. Compare Wharton, Crim. PI. 

§ 776. & Pr. §§ 400-403. 

4 Post, § 638-641. 

^Reg. V. Stone, 1 Post. & F. 311; 
post, § 638. 



§ 617] JUDGMENTS AND JUDICIAL RECORDS. 1255 

And so the "mere averments of a legal conclusion are not ad- 
mitted by a demurrer, unless the facts and circumstances set 
forth are sufficient to sustain the allegation." ^ In criminal 
cases a demurrer to the prosecution's evidence admits all the 
facts that the evidence tends to prove.^ 

§ 617. Binding effect of official certificates. — Facts per- 
taining to a record, but not entered on the record, may be 
certified to by the proper clerk, and the certificate received as 
evidence.^ Thus the certificate of a clerk of a circuit court 
has been received to prove that a cause was not tried at the 
circuit; ^ and the certificate of a court of appeals may be evi- 
dence to prove reversal of a judgment.' 

^ Gould V. Evansville & C. R. Co. ^ See supra, §§ 166, 195-201. 

91 U. S. 536, 23 L. ed. 419. Com- 2 Wright v. Murray, 6 Johns. 286. 

pare Wharton, Crini. PL & Pr. See supra, § 166. 
§§ 400-403. ^Hoy v. Couch, 5 How. (Miss.) 

8 Com. V. Parr, 5 Watts & S. 345 ; 188. 
Brister v. State, 26 Ala. 108. See 
Golden v. Knowles, 120 Mass. 336; 
Wharton, Crim. PL & Pr. § 407. 



CHAPTER XIII. 

MODIFICATION OF DOCUMENTS BY PAROL. 

620. Documents not to be varied by parol. 

621. But parol evidence admissible to identify and distinguish doc- 

ument. 

§ 620. Documents not to be varied by parol. — It is rare- 
ly that an issue can arise in criminal procedure, involving the 
modification of a document by parol. It is enough, therefore, 
in the present volume, to state, as a general rule, that to vary 
the terms of a document parol evidence cannot be received. 
It is important, at the same time, to keep in mind the distinc- 
tion between documents which are uttered dispositively, i. e., 
for the purpose of disposing of rights ; and those uttered non- 
dispositively, i. e., not for the purpose of disposing of rights. A 
nondispositive, or, to adopt Mr. Bentham's term, a "casual," 
document, is more open to parol variation than is a document 
which is dispositive, or, as Mr. Bentham calls it, "predeter- 
mined." A casual or nondispositive document (e. g., a letter or 
memorandum thrown off hurriedly in the ease and carelessness 
of famihar intercourse, without intending to institute a con- 
tract, and without reference to the litigation into which it is aft- 
erwards pressed) is peculiarly, dependent upon extraneous cir- 
cumstances ; is often inexplicable unless such circumstances are 
put in evidence; and employs language which, so far from 
being made up of phrases selected for their conventional busi- 
ness and legal limitations, is marked by the writer's idiosyncra- 
sies, and sometimes comprises w^ords peculiar to the writer 
himself. But whether such documents are informally or 

1256 



620] 



MODIFICATION OF DOCUMENTS BY PAROL. 



1257 



formally constituted, they agree in this, that, so far as con- 
cerns the parties to the case in which they are ofifered, they 
were not prepared for the purpose of disposing of the rights 
of the party from whom they emanate. Dispositive docu- 
ments, on the other hand, are dehberately prepared, and are 
usually couched in wo.ds which are selected for the purpose, 
because they have a settled legal or business meaning. Such 
documents are meant to bind the party uttering them in both 
his statements of fact and his engagements of future action ; 
and they are usually accepted by the other contracting party 
(or, in case of wills, by parties interested), not in any occult 
sense, requiring explanation or correction, but according to the 
legal and business meaning of the terms. It stands to reason, 
therefore, that parol evidence is not as a rule to be received to 
vary the terms of documents so prepared and so accepted, 
though it is otherwise when such documents are offered, not 
dispositively, between the parties, but noncontractually, as to 
strangers. So far as concerns the parties or privies to a dis- 
positive document, valid in itself, its terms cannot ordinarily 
be varied by parol. ^ 



1 See 2 Wharton, Ev. chap. XII., 
where the topic before us is dis- 
cussed as follows : — 
I. General Rules. 

Parol evidence not admissi- 
ble to vary documents as 
between parties, § 920. 
New ingredients cannot be 

thus added, § 921. 
Dispositive documents may 
be varied by parol as to 
strangers, § 923. 
Whole document must be 

taken together, § 924. 
Written entries are of more 
weight than printed, § 925. 
Informal memoranda are ex- 
cepted from rule. § 926. 



Parol evidence admissible to 
show that document was 
not executed, or was only 
conditional, § 927. 

And to show that it was con- 
ditional on a nonperformed 
contingency, § 928. 

Want of due delivery, or of 
contingent delivery, may be 
proved by parol, § 930. 

Fraud or duress in execution 
may be shown by parol, 
and so of insanity, § 931. 

But complainant must have a 
strong case, § 932. 

So as to concurrent mistake, 
§ 933. 

So of illegality, § 935. 



1258 



EVIDENCE IN CRIMINAL CASES. [CHAP XIII. 



§ 621. But parol evidence admissible to identify and 
distinguish document. — In criminal practice few cases 



Between parties, intent can- 
not be proved to alter writ- 
ten meaning, § 936. 

Otherwise as to ambiguous 
terms, § 937. 

Declarations of intent need 
not have been contempo- 
raneous, § 938. 

Evidence admissible to bring 
out true meaning, § 939. 

For this purpose extrinsic 
circumstances may be 
shown, § 940. 

Acts admissible for the same 
purpose, § 941. 

Ambiguous descriptions of 
property may be explained, 
§ 942. 

Erroneous particulars maybe 
rejected as surplusage, § 
945. 

Ambiguity as to extrinsic ob- 
jects may be so explained, 
§ 946. 

Parol evidence admissible to 
prove "dollar" means Con- 
federate dollar, § 948. 

Parol evidence admissible to 
identify parties, § 949. 

To enable undisclosed prin- 
cipal to sue or be sued, he 
may be proved by parol, 
§950. 

But person signing as prin- 
cipal cannot set up that he 
was agent, § 951. 

Suretyship on writing may be 
shown by parol, § 952. 

Other cases of distinction 
and identification, § 953. 



Evidence of writer's use of 
language admissible to 
solve ambiguities, § 954. 

Party may be examined as to 
intent or understanding, § 
955. 

Patent ambiguities cannot be 
explained by parol, § 956. 

"Patent" is "subjective," and 
"latent" "objective," § 957. 

Usage cannot be proved to 
vary dispositive writings, 
§ 958. 

Otherwise in case of am- 
biguities, § 961. 

Usage is to be brought home 
to the party to whom it is 
imputed, § 962. 

May be proved by one wit- 
ness, § 964. 

Usage is to be proved to the 
jury, and must be reason- 
able, and not conflicting 
with lex fori, § 965. 

When no proof exists of 
usage, meaning is for 
court, § 966 

Power of agent may be con- 
strued by usage, § 967. 

Usage resolved to explain 
broker's memoranda, § 968. 

Customary incidents may be 
annexed to contract, § 969. 

Course of business admissi- 
ble in ambiguous cases. 
§ 971. 

Opinion of expert inadmissi- 
ble as to construction of 
document ; but otherwise 
to decipher and interpret, 
§ 972. 



§ 621] MODIFICATION OF DOCUMENTS BY PAROL. 1259 

arise in which the ordinary exceptions to this rule are appealed 
to. We may, however, generally say that parol evidence is 



Parol evidence admissible to 
rebut an equity, § 973. 

Opinion of witnesses as to 
libel admissible, § 975. 

Dates not necessarily part of 
contract, § 976. 

Dates presumed to be true, 
but may be varied by parol, 
§ 977. 

Exception to this, § 978. 

Time may be inferred from 
circumstances, § 979. 
11. Special Rules as to Records, 
Statutes, and Charters. 

Records cannot be varied by 
parol, § 980. 

And so of statutes and char- 
ters, § 980a. 

Otherwise as to acknowledg- 
ment of sheriff's deeds, 
§ 981. 

Record imports verity, § 982. 

But on application to court, 
record may be corrected by 
parol, § 983. 

For relief on ground of 
fraud, petition should be 
specific, § 984. 

Fraudulent record may be 
collaterally impeached, § 
985. 

When silent or ambiguous, 
record may be explained 
by parol, § 986. 

Town records subject to 
same rules, § 987. 

Former judgment may be 
shown to relate to a par- 
ticular case, § 988. 

Nature of cause of action 
may be proved, § 989. 



So of hour of legal proce- 
dure, § 990. 

So of collateral incidents of 
records, § 991. 
III. Special Rules as to Wills. 

Wills cannot be varied by 
parol. Intent must be 
drawn from writing, § 992. 

When primary meaning is in- 
applicable to any ascertain- 
able object, evidence of 
secondary meaning is ad- 
missible, § 996. 

When terms are applicable to 
several objects, evidence 
admissible to distinguish, 
§ 997. 

In ambiguities, all the sur- 
roundings, family, and hab- 
its of the testator may be 
proved, § 998. 

All the extrinsic facts are to 
be considered, § 999. 

When description is only 
partly applicable to each of 
several objects, then decla- 
rations of intent are inad- 
missible, § 1001. 

Evidence admissible to the 
other ambiguities, § 1002. 

Erroneous surplusage may be 
rejected, § 1004. 

Patent ambiguities cannot be 
resolved by parol, § 1006. 

Ademption of legacy may be 
proved by parol, § 1007. 

Parol proof of mistake of 
testator inadmissible, § 
1008. 

Fraud and undue influence 
may be so proved, § 1009. 



1260 



EVIDENCE IN CRIMINAL CASES. [CHAP XIII. 



Testator's declarations pri- 
marily inadmissible to 
prove fraud or compulsion, 
§ 1010. 

But admissible to prove men- 
tal condition, § 1011. 

Parol evidence inadmissible 
to sustain will when at- 
attacked, § 1012. 

Probate of will only prima 
facie proof, § 1013. 
IV. Special Rules as to Con- 
tracts. 

Prior conference merged in 
written contract, § 1014. 

Parol may prove contract 
partly oral, § 1015. 

Oral acceptance of written 
contract may be so proved, 
§ 1016. 

Rescission of one contract 
and substitution of another 
may be so proved, § 1017. 

Exception at law as to writ- 
ings under seal, § 1018. 

Parol evidence admissible to 
reform a contract on 
ground of fraud, § 1019. 

So as to concurrent mistake, 
§ 1021. 

But not ordinarily to contra- 
dict document, § 1022. 

Reformation must be special- 
ly asked, § 1023. 

Under statute of frauds 
parol contract cannot be 
substituted for written, § 
1025. 

Collateral extension of con- 
tract may be proved by 
parol, § 1026. 

Parol evidence inadmissible 
to prove unilateral mistake 
of fact, § 1028. 



And so of mistake of law, 
§ 1029. 

Obvious mistake of form 
may be proved by parol, 
§ 1030. 

Conveyance in fee may be 
shown to be a mortgage, 
§ 1031. 

But evidence must be plain 
and strong, § 1033. 

Admission of such evidence 
does not conflict with stat- 
ute of frauds, § 1034. 

Resulting trust may be 
proved by parol, § 1035. 

So of other trust, § 1038. 

Particular recitals may es- 
top, § 1039. 

Otherwise as to general re- 
citals, § 1040. 

Recitals do not bind third 
parties, § 1041. 

Recitals of purchase money 
open to dispute, § 1044. 

Consideration may be proved 
or disproved by parol, § 
1044. 

Seal imports consideration, 
but may be impeached on 
proof of fraud or mistake. 
§ 1045. 

Consideration in contract 
cannot prima facie be dis- 
puted by those claiming 
under it, though other con- 
sideration may be proved 
in rebuttal of fraud, § 1046. 

When fraud is alleged, 
stranger may disprove con- 
sideration, § 1047. 

And so may bona fide pur- 
chasers and judgment 
vendees, § 1049. 



621] 



MODIFICATION OF DOCUMENTS BY PAROL, 



1261 



admissible to identify a record and to explain its subject-mat- 
ter ; ^ to show that a forged document on its face invalid is 
one on which a prosecution may prima facie be sustained ; ^ 
to support the innuendoes in a libel ; ^ and to clear ambiguities 
in a written confession.* 



V. Special Rules as to Deeds. 

Deeds not open to variation 
by parol proof, § 1050. 

Acknowledgment may be dis- 
puted by parol, § 1052. 

Between parties, deeds may 
be varied on proof of am- 
biguity and fraud, § 1054. 

Deeds may be attacked by 
bona fide purchasers, an. I 
judgment vendees, § 1055. 

And so as to mortgages, § 
1056. 

Deed may be shown to be in 
trust, § 1057. 

(As to recitals see §§ 1039- 
1042.) 

VI. Special Rules as to Negotia- 

ble Paper. 

Negotiable paper not suscep- 
tible of parol variation, 
§ 1058. 

Blank indorsement may be 
explained, § 1059. 

Relations of parties with no- 
tice may be varied by parol, 
and so may consideration, 
§ 1060. 

Real parties may be brought 
out by parol, § 1061. 

Ambiguities in such paper 
may be explained, § 1062. 



VII. Special Rules as to Other 
Instruments. 
Releases cannot be contra- 
dicted by parol, § 1063. 
Receipts can be so contra- 
dicted, § 1064. 
Exception as to insurance re- 
ceipts, § 1065. 
Receipts may be estoppels as 

to third parties, § 1066. 
Bonds may be shown to be 
conditioned on contingen- 
cies, § 1067. 
Subscriptions cannot be mod- 
ified as to third parties by 
parol, § 1068. 
Bills of lading are open to 
explanation, § 1070. 
Rex V. Tucker, 1 Moody, C. C. 
134, Car. Crim. Law, 288 ; Reg. v. 
Cooper, 3 Cox, C. C. 547; State v. 
Linthicum, 68 Mo. 66. 
1 Supra, § 593. 

^ Reg. V. Toshack, Temple & M. 
207, 1 Den. C. C. 492, 13 Jur. 1011, 
4 Cox, C. C. 38 ; Reg. v. Kay, L. R. 
1 C. C. 257, 39 L. J. Mag. Cas. N. 
S. 118, 22 L. T. N. S. 557, 18 Week. 
Rep. 934, 11 Cox, C. C. 529; Com. 
V. Ray, 3 Gray, 441 ; People v. Shall, 
9 Cow. 778. 

3 See Wharton, Crim. Law, 8th 
ed. §§ 1651, et seq. 
* Post, § 643. 



CHAPTER XIV. 

CONFESSIONS. 

I. General Characteristics. 
§ 622. Definition. 

622a. Confessions distinguished from admissions. 

622b. Confession ; what it excludes. 

622c. Judicial confessions; quasi judicial confessions. 

622d. Confessions of third persons not admissible. 

622e. Reasons for exclusion. 

622f. Method of obtaining. 

622g. True confession not excluded because involuntary. 

622h. Practice on admission. 

622j. Burden of proof on admissibility; character of evidence. 

622k. Burden of proof ; presumptions. 

6221. Discretion of judge; quantum of proof. 

623. Confessions, strictly speaking, are not evidence. 

624. A confession must relate to past or present conditions. 

625. Extrajudicial confessions prima facie proof only. 

626. Intention a necessary basis to a confession. 

627. Self-disserving confession of guilt. 

628. Theoretically, a confession is deducted; an admission inducted. 

629. Identification of accused. 

630. Medium through which the confession is transmitted. 

631. General rule as to admissibility. 

631a. Definition of "voluntary" as applied to confessions. 

632. Admissibility distinguished from sufficiency. 

633. Corpus delicti and corroboration. 

634. Sufficiency of corroboration. 

635. Credibility of confessions. 

636. Mental capacity at the time of confession. 

636a. Incomplete control of faculties at time of confession, 

637. Confessions in marital crimes. 

II. Judicial Confessions. 
§ 638. Conclusiveness of. 

639. Plea in abatement as a judicial confession. 

1262 



CONFESSIONS. 1263 

§ 640. Admissions by pleadings. 

641. Answers under oath as admissions. 

642. Admissions in court process. 

III. Written Confessions. 
§ 643. Generally. 

644. Letters. 

645. Telegrams. 

645a. Magistrate's report. 

645b. Parol evidence of written confession; when admissible. 

IV. Admissfbility of Confessions as Determined by Threats or Prom- 

ises. 
§ 645c. Voluntary character of confessions. 

646. Confession excluded because of threats. 
646a. Threats ; sweat-box confessions. 

646b. Threats ; adjuration. 

646c. Threats to prosecute. 

646d. Character of threats that render a confession involuntary. 

646e. Promise in general. 

647. Mere adjuration to speak the truth does not exclude. 

648. Representing that concealment is folly does not exclude. 

649. Confessions to persons in authority. 

650. Persons in authority. 

650a. Particular relations constituting persons in authority. 

651. Rule in earlier English cases. 
651a. To magistrates, police officers, etc. 

652. By servant to master. 
6S2a. To sundry authorities. 

652b. Made in the presence of persons in authority. 

653. Condition of party confessing. 
653a. Induced by hope or fear. 

654. Advice. 

655. Expectation of compromise or mitigation. 

656. Of an accomplice. 

657. Collateral inducements to confess. 

658. Issue is whether the influence applied was such as to induce a 

false statement. 

659. Confessions made under assurances of secrecy are admissible. 

660. Spiritual inducements. 

661. Under duress. 

662. When in custody. 

663. In answer to questions assuming guilt. 

664. Under oath. 

665. Confession involuntary when answers are given under com- 

pulsion. 

666. English practice on preliminary examination. 



1264 EVIDENCE IN CRIMINAL CASES. [CHAP XIV. 

§ 668. Confession of accused, where compelled to answer under oath. 

669. Confession of accused, where voluntary, under oath. 

670. Confessions obtained by trick, artifice, or deception. 

671. Where inducement is not held out directly to accused. 

672. Confession in presence of party in authority. 

673. Apparent authoritative influence is ground for exclusion. 

674. Construction of expressions tending to elicit a false confessiom 

V. Voluntary Character and Competency Generally. 
§ 674a. Voluntary character question for the court 

675. During sleep and prayer. 

676. During intoxication. 
676a. By children. 

676b. Of different offense. 

676c. Caution as affecting character of the confession. 

VI. How Far Original Improper Influence Vitiates Subsequent Con- 

fessions. 
§ 677. Confession subsequent to an involuntary confession; burden of 
proof. 
677a. Inculpatory facts discovered through inadmissible confessions. 

VII. How Far Extraneous Facts Reached through an Inadmissible 

Confession may be Received. 
§ 678. Admissibility of inculpatory facts. 

VIII. Admissions by Silence or Conduct. 
§ 678a. Admissions are not confessions. 

678b. Silence as consent. 

679. Silence as admission. 

680. Circumstances under which the accusation is made. 

681. Silence where statute permits accused to testify. 

682. Letters in possession of accused. 

683. Admissions by conduct. 

683a. Admissions; questions of law and fact. 

IX. What Admissions may Prove. 

§ 684. Admissions to prove contents of writings. 

685. Confessions not excluded because accused is present 

686. Admission of marriage. 

687. Admissions not evidence of record facts. 

X. How Confessions are to be Construed. 
§ 688. Entire confession must be proved. 

XI. How Admissibility of Confessions is to be Determined. 

§ 689. The character of the confession is a question for the court. 

689a. Confessions ; voluntary character to be decided by the judge. 
XIa. Weight of Confessions. 
§ 689b. Weight and conclusiveness. 



§ 622] CONFESSIONS. 1265 

XII. Self-serving Declarations. 

§ 690. Self-serving declarations inadmissible. 

691. Declarations as res gestce. 

692. Accused may show capacity in which he was acting. 

693. Accused's declarations as to his condition. 

694. Weight of self-serving declarations. 

XIII. Admissions of Agents. 

§ 695. When admissions of agent bind principal. 

696. Admissions of agent in cases of criminal negligence. 

697. Admissions of attorneys of record. 

XIV. Admissions of Co-Conspirators. 

§ 698. When admissible against others than the confessor. 
698a. Order of testimony in conspiracy. 

699. Declarations not admissible after the conspiracy is at an end. 

700. Rule not affected by parties being codefendants. 
700a. Decoy not a co-conspirator. 

701. Form of prosecution not material. 

702. Principal's acts admissible against accessory. 

703. Declarations of co-conspirators in each other's favor. 

XV. General Principles of Confessions. 
§ 704. General conclusions. 

705. General principles of the law of confessions. 



I. General Characteristics. 

§ 622. Definition. — A confession, as applied in criminal 
law, is a statement by a person, made at any time afterwards, 
that he committed or participated in the commission of a 
crime.^ Such confessions are generally divided into two clas- 

^ Black's Law Diet. "Confes- Pac. 964; State v. Carson, 35 S. C. 

sions;" Spicer v. Com. 21 Ky. L. 524, 15 S. E. 588; Austin v. State. 

Rep. 528, 51 S. W. 802, 11 Am. 15 Tex. App. 388; State v. Red, 53 

Crim. Rep. 250; Jones v. State. 96 Iowa, 69, 4 N. W. 831; Stephen's 

Ala. 102, 11 So. 399; People v. Par- Digest of Ev. Chase's ed. 52; Bou- 

ton, 49 Cal. 632; People v. Strong, vier's Law Diet.; People v. Amnier- 

30 Cal. 157; People v. LeRoy, 65 man, 118 Cal. 23, 50 Pac. 15; Ross 

Cal. 613, 4 Pac. 649; People v. Mil- v. State, 9 Mo. 696. See State v. 

ler, 122 Cal. 84, 54 Pac. 523; State rillis, 71 Conn. 293, 41 Atl. 820; 

V. Glynden, 51 Iowa, 463, 1 N. W. Shelton v. State, 144 Ala. 106, 42 

750; State v. Porter, 32 Or. 135, 49 So. 30; Owens v. State, 120 Ga. 296. 
Crim. Ev. Vol. II.— £0. 



1266 EVIDENCE IN CRIMINAL CASES. [CHAP XIV. 

ses, — judicial confessions and extrajudicial confessions.^ Ju- 
dicial confessions are those made by the accused in the court 
trying the crime charged,^ and generally termed plea of guilt. 
Extrajudicial confessions are those made, by any person, out- 
side of the sitting of the court.* 

§ 622a. Confessions distinguished from admissions. — 

An admission is distinguished from a confession by the fact 
that the term "admission," in criminal matters, relates to mat- 
ters of fact that do not involve a criminal intent, and a con- 
fession is an acknowledgment of guilt.^yThe distinction be- 
tween confessions and admissions must always be maintained, 
from the fact that admissions are always admissible in evi- 
dence under an exception to the rule excluding hearsay evi- 
dence, provided such admissions are made against interest, 
while a confession must be affirmatively shown to have been 
made under conditions which would not induce a false state- 
ment. 

§ 622b. Confession; what it excludes. — A confession, 
although differently phrased by different courts, being an ac- 
knowledgment, in express terms, by a party in a criminal case, 
of the truth of the crime charged, by the very force of the 

48 S. E. 21 ; Burk v. State. 50 Tex. *Sl>eer v. State, 4 Tex. App. 474. 

Crim. Rep. 185, 95 S. W. 1064; i Greenl. Ev. § 170; Stephen'- 

State V. Carr, 53 Vt. 37. Digest of Ev. 39, 52; Notara v. De 

'^ State V. Carr, 53 Vt. 37; Speer Kamalaris. 22 Misc. 337, 49 N. Y. 

V. State, 4 Tex. App. 474; State v. Supp. 216; Chamberlayne's Best, 

Miller, 9 Houst. (Del.) 564, 32 Atl. Ev. § 523 ; Slielton v. State, 144 Ala. 

137; People v. Hennessey, 15 Wend. 106, 42 So. 30; Owens v. State, 120 

147. Ga. 296, 48 S. E. 21; Perhins v. 

3 Speer v. State, 4 Tex. App. 474; Slate, 124 Ga. 6, 52 S. E. 17; State 

White V. State, 49 Ala. 344; Mat- v. Campbell, 73 Kan. 688, 9 L.R.A. 

thews V. State, 55 Ala. 187, 28 Am. (N.S.) 533, 85 Pac. 784, 9 A. & E. 

Rep. 698; Plendrickson v. People, Ann. Cas. 1203; Burnett v. State, 

10 N. Y. 13, 61 Am. Dec. 721. 86 Neb. 11, 124 N. W. 927. 



§ 622b] CONFESSIONS. 1267 

definition logically excludes : First, acts or guilty conduct ; sec- 
ond, exculpatory statements; third, admission of subordinate 
facts that do not constitute guilt. Much of the confusion that 
exists in the case law would be readily avoided if courts care- 
fully measured every confession by the rule of direct acknowl- 
edgment of guilt, as entirely distinguished from acts, exculpa- 
tory' statements, and admissions. As we shall see,^ a confes- 
sion was never intended to include anything but a plea of guil- 
ty by the accused in the court which had the crime charged 
under trial. ^ This obviously was conclusive of and necessar- 
ily excluded all testimony as to conduct, exculpation, and ad- 
missions. 

1. Exclusion by conduct. — It is never admissible to prove a 
confession by admitting testimony of other crimes not in any 
way connected with the crime under charge.^ An accused, on 
trial for hiring a prosecuting witness to absent himself, testi- 
fied that he had offered the witness money, but, in connection, 
made explanation of his intent in giving the money to the wit- 
ness, which acts did not constitute a confession within the defi- 

1 Post, § 638. Ohio St. 38, 77 N. E. 266, 6 A. & 

2 Staundforde, P. C. bk. 2, chap. E. Ann. Cas. 888; Robinson v. 
51; Hale, P. C. Emlyn's gd. p. 225. State, 55 Tex. Crim. Rep. 42, 114 S. 

8 State V. Jackson, 95 Mo. 623, 8 W. 811 ; Barnett v. State, 50 Tex. 

S. W. 749; Com. v. Wilson. 186 Pa. Crim. Rep. 538, 99 S. W. 556; State 

1, 40 Atl. 283, 11 Am. Crim. Rep. v. Knafp, 70 Ohio St. 380, 71 N. E. 

261; Tidzvell v. State, 40 Tex. Crim. 705, 1 A. & E. Ann. Cas. 819; Gore 

Rep. 38, 47 S. W. 466, 48 S. W. v. People, 162 111. 259, 44 N. E. 500 ; 

184; Drury v. Territory, 9 Okla. Zuckerman v. People, 213 111. 11+, 

398, 60 Pac. 101, 13 Am. Crim. Rep. 72 N. E. 741; State v. Jones, 171 

300; State v. Cowen, 56 Kan. 470, Mo. 401, 94 Am. St. Rep. 786, 71 

43 Pac. 687; Lismore v. State, 94 S, W. 680; Campos v. State, 50 

Ark. 207, 126 S. W. 853 ; People v Tex. Crim. Rep. 289, 97 S. W. 100. 

WiUiams, 159 Mich. 518. 124 N. W. See State v. Poole, 42 Wash. 192, 

555 ; State v. Wenzel, 72 N. H. 396, 84 Pac. 727 ; State v. Dalton, 43 

56 Atl. 918 ; Knapp v. State, 4 Ohio Wash. 278, 86 Pac. 590 ; Pilgrim v. 

C. C. N. S. 184, 6 Ohio S. & C. P. State, — Tex. Crim. Rep. — 128 

Dec. 341 ; State v. Lawrence, 74 S. W. 128. 



1268 EVIDENCE IN CRIMINAL CASES. [CHAP XIV. 

nition of that word ; * a statement by accused that when he 
found he was charged with murder he felt so distressed that 
he went to steahng horses, to pacify his mind, is not a con- 
fession of the crime of homicide ; ^ a statement of accused 
tliat he had dehvered the gun to C after doing the job he start- 
ed out to do, is not a confession of the crime; ^ a description, 
by accused, of how a man could be killed, is not admissible 
as a confession, for it admits nothing connected with the homi- 
cide under trial ; '' the voluntary act of accused, in raising up a 
plank and searching thereunder, is not a confession of larceny 
of the money alleged to be stolen ; * the acts and conduct of 
accused, while in jail, do not constitute a confession;® acts 
and admissions of an accused charged with criminal libel, tend- 
ing to show his ownership of the paper in which the libel was 
published, are not a confession, in legal contemplation ^° offer 
to compromise an accusation by paying the amount of a forged 
check, or a greater sum, is not a confession; ^^ accused stating 
that he did not participate in a robbery, but received part of the 
money from one who was running away, is not a confession ; ^ 
the admission of a fact, from which guilt may be inferred, 
is not a confession;^' directing accused to fit his shoe into a 
track does not involve a confession; ^* offering to pay a sher- 
iff $100 or to sell his place for less than its worth, does not 
involve a confession. ^^ 



'^ State V. Crowder, 41 Kan. 101. ^^ Michaels v. People, 208 III. 603. 

21 Pac. 208. 70 N. E. 747. 

'^ State V. Jackson, 95 Mo. 623, 8 ^^ State v. Alexander. 109 La. 557, 

S. W. 749. 33 So. 6C0, 12 Am. Crim. Rep. 102. 

6 Taylor v. State, Z7 Neb. 788, 56 " state v. Jackson, 95 Mo. 623, 8 

N. W. 623. S. W. 749. But see Runnels v. 

T Moore v. State, 2 Ohio St. 500. State. 42 Tex. Crim. Rep. 555. 61 S. 

^Rhodes v. State, 11 Te.x. App. W. 479. 

563. 14 Guerrero v. State, 46 Tex. 

9 Adams v. State, 34 Tex. Crim Crim. Rep. 445, 80 S. W. 1001. 
Rep. 470, 31 S. W. Z72. ^^ State v. Keeland. 39 Mont. 506. 

10 People V. Miller, 122 Cal. 84, 54 104 Pac. 513. 
Pac. 523. 



§ 622b] 



CONFESSIONS. 



1269 



It is to be observed that in the decisions just cited the acts 
and conduct of the accused were admissible as evidence tending 
to estabhsh the truth of the charge, but that they were not di- 
rect acknowledgments of the accusation, and hence not admis- 
sible as a confession. ^^'^ 

2. Exclusion by exculpatory statements. — Conflicting dec- 
larations by accused, with a view of exculpating instead of in- 
criminating himself, do not constitute a confession; ^^ and dec- 
larations by accused that he was casually present at the homi- 
cide, but took no part in it, and did not know it was contem- 



15a It is to be observed that while 
the accepted definition of a confes- 
sion is an acknowledgment of guilt 
by the accused, and that acts can- 
not be held to constitute a confes- 
sion, nevertheless, in the state of 
Texas, the rule prevails that acts 
may constitute a confession, but 
this is based upon the peculiar 
wording of the Texrs statute, for- 
bidding the introduction of confes- 
sions unless the accused has been 
previousl}' warned, or else there ha- 
been a discovery of property whicii 
corroborates a statement that maj' 
be made ; and in this view the case 
of Rhodes v. State, 11 Tex. Apo. 
563, was expressly overruled by the 
case of Nolen v. State, 14 Tex. App. 
474, 46 Am. Rep. 247. In Nolen v. 
State, the court follows State v. 
Graham, 74 N. C. 646, 21 Am. Rep. 
493, 1 Am. Crim. Rep. 182, uphold- 
ing the admissibility of testimony 
where the accused was compelled to 
place his shoe in a track to show the 
resemblance, which the North Caro- 
lina court held was a confession 
induced by fear. It was not a con- 
fession at all, and should not have 



been offered as such. It was ad- 
missible, not as a confession, but as 
evidence tending to establish the 
identity of the accused. This dif- 
ficulty, however, has been obviated 
by a late statute in Texas, requiring 
that the confession be reduced to 
writing. The Nolan and Graham 
Cases are interesting, as showing 
the error which trial courts so fre- 
quently commit in dealing with con- 
fessions. There seems to be no 
question of the admissibility of the 
acts in the two cases as tending to 
establish the guilt of the accused, 
but it was a serious and a reversi- 
ble error to admit the acts as con- 
stituting a confession, for the mo- 
ment that the jury understood that 
the acts constituted a confession, 
and were so instructed by the court, 
then no evidence, by way of de- 
fense, would have any weight with 
the jury, because the accused had 
already confessed the crime by his 
acts, and the court had told the 
jury that such acts constituted a 
confession. 
^^ Harrison v. State, 55 Ala. 239. 



1270 EVIDENCE IN CRIMINAL CASES. [CHAP XIV> 

plated, is not a confession;" statements by accused in which 
each accused the other, but did not inculpate himself, are not 
confessions ; ^^ where accused, in commenting on the testimony 
of a witness, said that "what C said was true as far as it went, 
but he didn't say all, or enough," is not admissible as a con- 
fession ; ^^ a statement by accused that he knows who commit- 
ted the crime, and that he was present when another person 
(naming him) committed it, is not a confession;^" what de- 
fendant said to a witness, about an alleged forged order, is 
not a confession of the crime ; ^^ statements by accused, before 
a grand jury, denying his guilt, are not confessions;^^ the 
statement by accused that he had given too much of a certain 
drug, but at the same time insisting that it was done by mis- 
take, and that the homicide was without intent, is not a con- 
fession, and ought not to be submitted to the jury on that the- 
ory; ^^ a statement of an accused, when returning the case of a 
stolen watch, that he did not take it, is not a confession; '^^ 
a denial of a previous statement is not a confession.^^ 

It is clear, then, that to give to a statement the binding force 
of a confession, it must be an acknowledgment of guilt as its 
distinctive feature, without any exculpating statement or ex- 

^'i Boston V. State, 94 Ga. 590, 20 '^^ Henderson v. State, 120 Ala. 

S. E. 98, 21 S. E. 603. 360, 25 So. 236. 

18 State V. Carson, 36 S. C. 524, 22 state v. Campbell, 73 Kan. 688, 
15 S. E. 588. 9 L.R.A.(N.S.) 533, 85 Pac. 784, 9 

19 Finn V. Com. 5 Rand. (Va.) A. & E. Ann. Cas. 1203. 

701. 23 State v. Thomas, 135 Iowa, 717, 

20 Bell V. State, 93 Ga. 557, 19 S. 109 N. W. 900 ; Owens v. State, 120 
E. 244; People v. Elliott, 8 N. Y. Ga. 296, 48 S. E. 21. 

S. R. 223, 5 N. Y. Crim. Rep. 126; 'i^ Neville v. State, 148 Ala. 681. 

Jones V. State, 120 Ala. 303, 25 So. 41 So. 1011. 

204; Dumas v. State, 63 Ga. 600: ^^ Quintana v. State, 29 Tex. 

State V. Heidenreich, 29 Or. 381, 45 Crim. Rep. 401, 25 Am. St. Rep. 

Pac. 755; State v. Gilman, 51 Me. 730, 16 S. W. 258. See also Rob- 

206, 225 ; Burnett v. State, 86 Neb. ertson v. State, 30 Tex. Crim. Rep. 

11, 124 N. W. 927; State v. Keeland, 498, 17 S. W. 1068; State v. Carr, 

39 Mont. 506, 104 Pac. 513. 53 Vt. Z7. 



§ 622b] 



CONFESSIONS. 



1271 



planation,^^ and it is error to treat mere exculpatory statements 
as confessions, and to instruct the jury that they are confes- 



sions 



27 



3. Admission of subordinate facts that do not constitute 
guilt. — There must be some distinctive feature, showing guilt, 



^^ State V. Broughton, 29 N. C. 
(7 Ired. L.) 101, 45 Am. Dec. 507; 
State V. Gilman, 51 Me. 225 ; State 
V. Cadotte, 17 Mont. 315, 42 Pac. 
857; State v. Novak, 109 Iowa, 717. 
79 N. W. 465; Pentecost v. State, 
107 Ala. 81, 18 So. 146; Meadows 
V. State, 136 Ala. 67, 34 So. 183; 
People V. Hickman, 113 Cal. 80, 45 
Pac. 175; People v. Ammerman, 
118 Cal. 23, SO Pac. 15; Mora v. 
People, 19 Colo. 255, 262, 35 Pac. 
179; Swift, Ev. 133; Powell v. 
State, 101 Ga. 9, 65 Am. St. Rep. 
277, 29 S. E. 309; Shaw v. State, 
102 Ga. 660, 29 S. E. 477; Fuller 
V. State, 109 Ga. 809, 35 S. E. 298; 
State V. Spillers, 105 La. 163, 29 So. 
480; Taylor v. State, 37 Neb. 788, 
56 N. W. 623; State v. McDowell, 
129 N. C. 523, 39 S. E. 840; State 
V. Vaigncur, 5 Rich. L. 400, 402; 
Goodzvin v. State, 114 Wis. 318, 90 
N. W. 170. See Bram v. United 
States, 168 U. S. 532, 42 L. ed. 568, 
18 Sup. Ct. Rep. 183, 10 Am. Crim. 
Rep. 547. 

It must be observed that if the 
statement made by the accused is 
actually a confession, the confes- 
sion rule must be applied to it, even 
when it is sought to use the con- 
fession for the purposes of im- 
peaching the accused. But, while 
not admissible as a confession per 
se, the statement may be used by 
way of impeachment. Com. v. Tol- 



liver, 119 Mass. 312; People v. Case, 
105 Mich. 92, 62 N. W. 1017; State 
V. Braadbent, 27 Mont. 342, 71 Pac. 
1; Carwiie v. State, 148 Ala. 576, 
39 So. 220; Neville v. State, 148 
Ala. 681, 41 So. 1011; People v. 
John, 144 Cal. 284, 77 Pac. 950; 
People V. Kelly, 146 Cal. 119, 79 
Pac. 846; People v. Weber, 149 Cal. 
325, 86 Pac. 671. But see Tnttle v. 
People, 33 Colo. 243, 70 L.R.A. 33, 
79 Pac. 1035, 3 A. & E. Ann. Cad. 
513; State v. Thomas, 135 Iowa, 
717, 109 N. W. 900; State v. Aspara, 
113 La. 940, 37 So. 883; State v. 
Royce, 38 Wash. Ill, 80 Pac. 268, 3 
A. & E. Ann. Cas. 351. See Parks 
V. State, 46 Tex. Crim. Rep. 100, 
79 S. W. 301 ; State v. Gianfala, 113 
La. 463, 37 So. 30; Owens v. State, 
120 Ga. 296, 48 S. E. 21; Daniels 
V. State, 57 Fla. 1, 48 So. 747 ; State 
V. Keel and, 39 Mont. 506, 104 Pac. 
513; Banks v. State, 13 Tex. App. 
182; Weathersby v. State, 29 Tex. 
Crim. Rep. 278, 15 S. W. 823; 
Robertson v. State, 30 Tex. Crim. 
Rep. 498, 17 S. W. 1058; Ferguson 
V. State, 31 Tex. Crim. Rep. 93, 19 
S. W. 901 ; Griffin v. State, — Tex. 
Crim. Rep. — , 20 S. W. 552; Cor- 
poral V. State, — Tex. Crim. Rep. 
— , 24 S. W. 96. See State v. Blav, 
77 Vt. 56, 58 Atl. 794. 

^T Burnett v. State, 86 Neb. 11, 
124 N. W. 927. 



1272 EVIDENCE IN CRIMINAL CASES. [CHAP XIV. 

in the fact acknowledged, and all other statements than those 
directly stating the fact of guilt are without the scope of the 
rule affecting the use of confessions. The danger to the ac- 
cused, to be guarded against in the use of the statements touch- 
ing subordinate facts not directly involving guilt, is this, that 
such statements are admissible as tending to show the truth of 
the charge, and hence their weight is no greater than that of 
all other evidence, but, when such subordinate facts are admit- 
ted with all the force that arises out of a direct acknowledg- 
ment of guilt, it gives to facts having merely probative value 
the conclusive effect of a direct acknowledgment of guilt, in- 
stead of facts from which guilt might be inferred. In other 
words, the erroneous admission of subordinate facts, under the 
peculiar rules of confession, changes evidentiary and infer- 
ential testimony into direct proof of the charge under trial. 
Hence, the third ground of exclusion is that the admission of 
subordinate facts, not directly involving guilt, do not consti- 
tute a confession. Thus, the statement of accused answering 
the remark of an officer that the possession of certain articles 
looked suspicious, that it did, is not a confession;^* nor the 
fact that a party promised to make good articles claimed to 
have been stolen ; ^^ nor explaining the possession of stolen 
goods ; ^° nor, where an accused remarked that he was a good 
shot and could have gotten away by shooting a man, and to 
instruct the jury that such a statement constituted a confes- 
sion was an invasion of the right of the jury to decide upon 
the weight of the statement, as upon other evidence ; ^^ nor the 
statement of incriminating facts ;^^ nor a statement from 

^^ People V. Hickman. 113 Cal. SO. ^^ State v. Jones, 33 Iowa, 9. 

45 Pac. 175; State v. Heidenreici!. ^^ Johnson v. People, 197 III. 51, 

29 Or. 381, 45 Pac. 755. 64 N. E. 286; State v. Picton, 51 

29 Lee V. State, 102 Ga. 221, 29 S. La. Ann. 624, 25 So. 375. 
E. 264. 

^° People V. Ashmead, 118 CaL 
508. 50 Pac. 681. 



§ 622b] 



CONFESSIONS. 



1273 



which guilt might be inferred ; ^^ nor, on a trial for forgery, 
an admission by accused that he wrote the signature, unless 
he also admits that he did it with a fraudulent intent; ^^ nor 
where, sometime after the burning of a barn, the accused stat- 
ed that the house was insured and might "go to blazes with 
the barn," it not even being an admission that accused had 
burned the barn.^^ And the rule is in such cases that where 
the statement or the fact admitted is not a confession, but is 
admissible as circumstantial evidence, the court should not in- 
struct as to the law on confessions, but upon the law of cir- 
cumstantial evidence.^^ 



^ Territory v. Egan, 3 Dak. 119, 
13 N. W. 568. 

3* State V. Knowles, 48 Iowa, 598. 

^^ Hamilton v. People, 29 Mich. 
173, 1 Am. Crim. Rep. 618. 

36 Guerrero v. State, 46 Tex. 
Crim. Rep. 445, 80 S. W. 1001. 

Notwithstanding the very plaus- 
ible claim that a confession may be 
made by acts as well as by words, it 
does not militate against nor form 
a proper explanation to the defini- 
tion in the text. The acts and 
words are admissible as circum- 
stantial evidence, but not as confes- 
sions. The text is further illus 
trated by the following cases : 

United States. — United States v. 
Tardy, Pet. C. C. 458, Fed. Cas. No. 
16,432; Ballew v. United States, 160 
U. S. 187, 40 L. ed. 388, 16 Sup. Ct. 
Rep. 263. 

Alabama. — Banks v. State, 84 
Ala. 430, 4 So. 382; Pentecost v. 
State, 107 Ala. 81, 18 So. 146; 
Curry v. State, 120 Ala. 366, 25 So. 
237; Spicer v. State, 69 Ala. 159; 
Holland v. State, 162 Ala. 5, 50 So. 
215; Jones v. State, 137 Ala. 12, 34 



So. 681 ; Parrish v. State, 139 Ala. 
16, 41, 36 So. 1012; Talbcrt v. State. 
140 Ala. 96, 27 So. 78; Plant v. 
State, 140 Ala. 52, 37 So. 159; Davis 
V. State, 141 Ala. 62, 37 So. 676; 
Braham v. State, 143 Ala. 28, 38 So. 
919. 

Arkansas. — Ince v. State, 77 Ark. 
426, 93 S. W. 65. 

California.— P^o/'/^ v. Joy, — 
Cal. •-, 66 Pac. 964; People v. Ash- 
mead, 118 Cal. 508, 50 Pac. 681: 
People V. Hickman, 113 Cal. 80, 45 
Pac. 175 ; People v. LeRoy, 65 Cal. 
613, 4 Pac. 649; People v. Strong, 
30 Cal. 157; People v Knozvlton, 
122 Cal. 357, 55 Pac. 141; People 
V. Parton, 49 Cal. 637; People v. 
Miller, 122 Cal. 84, 54 Pac. 523; 
People V. Weber, 149 Cal. 325, 86 
Pac. 671 ; People v. Fallon, 149 Cal. 
287, 86 Pac. 689. 

Colorado. — Mora v. People, 19 
Colo. 255, 35 Pac. 179. 

Florida. — Daniels v. State, 57 Fla. 
1, 48 So. 747. 

Georgia. — Powell v. State, 101 Ga. 
9, 65 Am. St. Rep. 277. 29 S. E. 309: 
Taylor v. State, 110 Ga. 150, 35 S. 



1274 



EVIDENCE IN CRIMINAL CASES. [CHAP XIV. 



§ 622c. Judicial confessions ; quasi judicial confessions. — 
1. Judicial confessions. — A judicial confession is a plea of 



E. 161 ; Shaiv v. State, 102 Ga. 660. 
29 S. E. 477; Goolsby v. State, 133 
Ga. 427, 66 S. E. 159; Ransom v. 
State, 2 Ga. App. 826, 59 S. E. 101 ; 
Dumas v. State, 63 Ga. 600; Cov- 
ington V. State, 79 Ga. 687, 7 S. 
E. 153; Fletcher v. State, 90 Ga. 
468, 17 S. E. 100; Ford v. State, 124 
Ga. 793, 53 S. E. 335; Lee v. State, 
102 Ga. 221, 29 S. E. 264; Suddeth 
V. State, 112 Ga. 407, 37 S. E. 747; 
Johnson v. State, 1 Ga. App. 129, 
57 S. E. 934; Mill v. State, 3 Ga. 
App. 414. 60 S. E. 4. 

Illinois. — Bergen v. People, 17 
111. 426, 65 Am. Dec. 672; Goon 
Bozv V. People, 160 111. 438, 43 N. 
E. 593; Johnson v. People, 197 111. 
48, 64 N. E. 286. 

Iowa. — State v. Carroll, 85 Iowa, 
1, 51 N. W. 1159; State v. Red, 53 
Iowa, 69, 4 N. W. 831; State v. 
Glynden, 51 Iowa, 463, 1 N. W. 
750 ; State v. Feltes, 51 Iowa, 495, 1 
N. W. 755. 

Kansas. — State v. Crozvdcr, 41 
Kan. 101, 21 Pac. 208; State v. 
Campbell, 72, Kan. 688, 9 L.R.A. 
(N. S.) 533. 85 Pac. 784, 9 A. & E. 
Ann. Gas. 1203. 

Louisiana. — State v. Picton, 51 
La. Ann. 624, 25 So. 375; State v. 
Lewis, 39 La. Ann. 1110, 3 So. 343. 

Massachusetts. — Com. v. Crowe, 
165 Mass. 139. 42 N. E 563 ; Com. 
V. Devaney, 182 Mass. 33, 64 N. E. 
402. 

Minnesota. — State v. Mims, 26 
Minn. 183. 2 N. W. 494, 683. 

Mississippi. — Richburger v. State, 
90 Miss. 806, 44 So. 772. 



Missouri. — State v. Wilkins, 221 
Mo. 444, 120 S. W. 22. 

Montana. — State v. Keeland, 39 
Mont. 506, 104 Pac. 513; State v. 
Lu Sing, 34 Mont. 31, 85 Pac. 521, 
9 A. & E. Ann. Gas. 344. 

Nebraska. — McLain v. State, 18 
Neb. 154, 24 N. W. 720, 6 Am. 
Grim. Rep. 21 ; Taylor v. State, ?^ 
Neb. 788, 56 N. W. 623; Foiise v. 
State, 83 Neb. 258, 119 N. W. 478. 

New York.— People v. Hiighson, 
154 N. Y. 153, 47 N: E. 1092. 

Oregon. — State v. Heidenreich, 
29 Or. 381, 45 Pac. 755; State v. 
Anderson, 53 Or. 479. 101 Pac. 198. 

Pennsylvania. — Com. v. Johnson, 
162 Pa. 63, 29 Atl. 280. 

Rhode Island. — State v. Nagle, 25 
R. I. 105, 105 Am. St. Rep. 864, 54 
Atl. 1063. 

South Carolina. — State v. Motley, 
7 Rich. L. 327. 

South Dakota. — State v. Vey, 21 
S. D. 612, 114 N. W. 719. 

Tennessee. — Deathridge v. State, 
1 Sneed, 75. 

Texas. — Banks v. State, 13 Tex. 
App. 182; Ferguson v. State, 31 
Tex. Grim. Rep. 93, 19 S. W. 901 : 
Corporal v. State, — Tex. Grim. 
Rep. — , 24 S. W. 96; Davis v. 
State, — Tex. Grim. Rep. — , 23 S. 
W. 687; McAdoo v. State, — Tex. 
Grim. Rep. — , 35 S. W. 966; Eck- 
ert V. State, 9 Tex. App. 105; IVil- 
lard V. State, 26 Tex. App. 139, 9 
S. W. 358 ; Keeton v. State. — Tex. 
Grim. Rep. — , 128 S. W. 404; 
Reinhard v. State, 52 Tex. Grim. 
Rep. 59, 106 S. W. 128; Purdy v. 



§ 622c] CONFESSIONS. 1275 

guilty made by an accused in a fit state of mind to plead before 
a court competent to try the pending charge in which the pro- 
ceedings have been regularly instituted, and which upon entry 
of that plea is competent to enter judgment and affix the pen- 
alty. Such a confession is conclusive as to guilt in fact of 
the offense charged.^ 

Logically the definition of a judicial confession could not 
be extended further than it is here defined. Under these con- 
ditions it finally determines and concludes the case. An appeal 
from a judgment so entered has been properly dismissed as 
frivolous.^ The distinctive feature, then, of a judicial con- 
fession is its conclusive character. Any departure from the 
definition is not merely an exception, but is governed by differ- 
ent procedure. Thus, where a plea is prepared by the attorney 
for the accused, which was rejected by the court, it cannot 
even be regarded as a confession.^ A demurrer to an indict- 
ment can never be construed as a confession.'* Even where 
a judgment on a plea of guilty is reversed, the record of the 
plea is not conclusive, but has merely the same evidentiary 
character as a confession proved in any other way,^ but such 

State, 50 Tex. Crim. Rep. 318, 97 1 Crim. App. Rep. 45; Marsh v. 

S. W. 480. Mitchell, 26 N. J. Eq. 497 ; Com. v. 

Vermont. — State v. Blay, 77 Vt Jackson, 2 Va. Cas. 501 ; Gridley 

56, 58 Atl. 794. v. Conner, 4 La. Ann. 416; Denton 

Washington. — State v. Munson, 7 v. Erwin, 5 La. Ann. 18; Edson v. 

Wash. 239, 34 Pac. 9.32; State v. Freret Bros. 11 La. Ann. 710. See 

McCauley, 17 Wash. 88, 49 Pac. State v. Colvin, 11 Humph. 599, 54 

221, 51 Pac. 382; State v. Royce, 38 Am. Dec. 58; Com. v. Brown, 150 

Wash. Ill, 80 Pac. 268, 3 A. & E. Mass. 330, 23 N. E. 49; Reg. v. 

Ann. Cas. 351. Stone. 1 Post. & F. 311; Reg. v. 

Wisconsin. — Roszczyniala v. Simmonds, 4 Cox, C. C. 277. 

State. 125 Wis. 414, 104 N. W. 113; 2 i^. v. Oliver, 1 Crim. App. Rep. 

Anderson v. State, 133 Wis. 601, 114 45. 

N. W. 112. 3 Coot. v. Lannan, 13 Allen, 563. 

1 Archbold, Crim. PI. 23d ed. 330; ^Ross v. State, 9 Mo. 696; State 

Taylor, Ev. 10th ed. § 872; Phip- v. Meyers, 99 Mo. 107, 12 S. W. 516. 

son, Ev. 4th ed. 242; R, v. Oliver, ^ Com. v. Ervine, 8 Dana, 30. 



1276 



EVIDENCE IN CRIMINAL CASES. [CHAP XIV. 



plea may be used against the accused in all other cases in which 
it is relevant,^ but not as a confession. Historically, no other 
confession than a judicial confession, in its technical sense, 
was ever recognized under criminal procedure as it is estab- 
lished under the common law. This is evident from the early 
works on pleading.' It is true, however, that the pressure 
to use summary methods often resulted in bitter incrimination, 
in the endeavor to force a statement. Direct torture to ex- 
tort a confession continued as late as 1640,^ and even as late 



^ Reg. V. Fontaine Moreau, 11 Q. 
B. 1033, 17 L. J. Q. B. N. S. 187, 12 
Jur. 626; Bradley v. Bradley, 11 Mt-. 
367; Perry v. Simpson Waterproof 
Mfg. Co. 40 Conn. 313. 

' If one is indicted or appealed 
of felony, and on his arraignment 
he confesses it, this is the best and 
surest answer that can be, in our 
law, for quieting the conscience of 
the judge and for making it a good 
and firm condemnation ; provided, 
however, that the said confession 
did not proceed from fear, menace, 
or duress ; which if it was the case, 
and the judge has become aware of 
it, he ought not to receive or record 
this confession, but cause him to 
plead not guilty and take an in- 
quest to try the matter. Staund- 
forde, P. C. bk. 2, chap. 51. 

Concerning the plea of the pris- 
oner upon his arraignment, and, 
first, of his confession of the fact 
charged and approving others. 
When the prisoner is arraigned, 
and demanded what he saith to the 
arraignment, either he confesseth 
the indictment, or pleads to it, or 
stands mute and will not answer. 
The confession is either simple, or 
relative in order to the attainment 



of some other advantage. That 
which I call a simple confession is 
where the defendant, upon hearing 
of his indictment, without any other 
respect confesseth it ; this is a con- 
viction; but it is usual for the 
court, especially if it be out of 
clergy, to advise the party to plead 
and put himself upon his trial, and 
not presently to record his confe.-:- 
sion but to admit him to plead. If 
it be but an extrajudicial confession, 
though it be in court, — as where the 
prisoner freely tells the f:ict and 
demands the opinion of the court 
whether it be a felony, — though up- 
on the fact thus shown it appear to 
be a felony, the court will not re- 
cord his confession, but admit him 
to plead to the felony "not guilty." 
A confession in order to som.o 
other advantage is either where the 
prisoner confesseth the felony in 
order to his clergy, or where he 
confesseth the oflFense and appeal- 
eth others thereof, thereby to be 
come an approver, and thereupon 
to obtain his pirdon if he convict 
them. Hale, P. C. Emlyn's ed. 225. 
8 Jardine, Torture in the Crim. 
Law of England; Judicial use of 
Torture, 11 Harvard L. Rev. 293; 



§ 622c] CONFESSIONS. 1277 

as 1664; the accused says, "I confess I did confess it in the 
iTovver, being threatened with the rack;" ^ and the confession 
so obtained was employed evidentially, without hesitation. 
From this it appears that the confession so extorted was evi- 
dentiary only, and not conclusive. 

2. Quasi judicial confessions. — Confessions made before a 
magistrate, such as on a preliminary examination ; or at an in- 
quest, such as at a coroner's inquest, or a fire inquest; or be- 
fore a grand jury, or on a trial of another, — cannot be prop- 
erly designated as judicial confessions, as the term is defined 
in the text; for the reason that such courts or such inquests 
have no authority to determine finally, but conviction or ac- 
quittal, the offense charged. Hence, such quasi judicial con- 
fessions fall under the head of extrajudicial confessions, from 
the fact that the confession so obtained is merely evidential, 
and it must be based, when made before the magistrate, upon 
a strict compliance with the law, or be made under circum- 
stances that give to it a voluntary character.^" On such ex- 
aminations or inquests there is, at least, the semblance of law, 
and statements made under such conditions have been gener- 
ally admitted in evidence, the mere fact of being under arrest 
not excluding the confession. ■^^ The cases just cited show the 

Mitchel's Trial, 6 How. St. Tr. ^^ Rex v. Lambe, 2 Leach, C. L 

1207; Bradford's History of Ply- 552; Woodburne's Trial, 16 How. 

mouth Plantation, p. 473. St. Tr. 54; Berwick's Case, Post. C. 

^Tongc's Trial, 6 How. St. Tr. L. 10; Thornton's Case, 1 Moody, 

259. C. C. 27, s. c. 1 Lewin, C. C. 49; 

^^ State V. Hatcher, 29 Or. 309, 44 Rex v. Gilham, 1 Moody, C. C. 186. 

Pac. 584; State v. Bruce, 33 La. Car. Crim. Law, 51; Rex v. Szval- 

Ann. 186; State v. Shaw, 32 Tex kins, 4 Car. & P. 549; Rex v. Rich- 

Crim. Rep. 155, 22 S. W. 588; Peo- ards, 5 Car. & P. 318; Rex v. Long, 

pie V. Kelley, 47 Cal. 125 ; State v. 6 Car. & P. 179 ; Rex v. Wild, 1 

O'Brien, 18 Mont. 1, 43 Pac. 1091, Moody, C. C. 452; Reg. v. Kerr, 8 

44 Pac. 399; State v. May, 62 W. Car. & P. 177; Rex v. Thomas, 2 

;Va. 129, 57 S. E. 366 ; State v. Glass. Leach, C. L. 637. As to admissibil- 

50 Wis. 218, 36 Am. Rep. 845, 6 N. ity of confession made before cor- 

W. 500. oner, see note in 70 L.R.A. 47. As 



1278 



EVIDENCE IN CRIMINAL CASES. [CHAP XIV. 



modern English practice. The law declared by these rulings 
has been embodied into a statute, the object being to insure an 
authentic record of what the accused said in answer to the 
charge against him, and also to enable the trial judge to see 
whether the testimony given on the trial of the offense is con- 
sistent with that given at the preliminary hearing. ^^ This con- 
fession is rather a deposition at a preliminary inquiry, than a 
confession, in the modern use of that word. 

3. Statement before the examining magistrate. — In this 



to confession on statements made 
before grand jury, see notes in 28 
L.R.A. 318, and in 9 L.R.A.(N.S.) 
533. 

12 After the examinations of all 
the witnesses on the part of the 
prosecution, as aforesaid, shall 
have been completed, the justice of 
the peace, or one of the justices by 
or before whom' such examination 
shall have been so completed, as 
aforesaid, shall, without requiring 
the attendance of the witnesses, 
read or cause to be read to the 
accused the depositions taken 
against him, and shall say to him 
these words, or words to the like 
effect : "Having heard the evi- 
dence, do you wish to say anything 
in answer to the charge? You arc 
not obliged to say anything unless 
you desire to do so, but whatever 
you say will be taken down in writ- 
ing, and may be given in evidence 
against you upon your trial," and 
whatever the prisoner shall then 
say in answer thereto shall be tak- 
en down in writing, and read over 
to him, and shall be signed by the 
said justice or justices, and kept 
with the depositions of the witness- 
es, and shall be transmitted with 



them as hereinafter mentioned ; and 
afterwards, upon the trial of the 
said accused person, the same may, 
if necessary, be given in evidence 
against him without further proof 
thereof, unless it shall be proved 
that the justice or justices purport- 
ing to sign the same did not in fact 
sign the same : provided always, 
that the said justice or justices be- 
fore such accused person shall 
make any statement shall state to 
him, and give him clearly to under- 
stand, that he has nothing to hope 
from any promise of favor, and 
nothing to fear from any threat 
which may have been holden out 
to him to induce him to make any 
admission or confession of his 
guilt, but that whatever he shall 
then say may be given in evidence 
against him upon his trial, notwith- 
standing such promise or threat; 
provided, nevertheless, that nothing 
herein enacted or contained shall 
prevent the prosecutor in any case 
from giving in evidence any admis- 
sion or confession or other state- 
ment of the person accused or 
charged, made at any time, which 
by law would be admissible as evi- 
dence against such person. 



§ 622c] CONFESSIONS. 1279 

country it is the general practice, upon the arrest of the person 
charged with a criminal offense, to take such person, for pre- 
liminary examination, before a justice of the peace or other 
committing magistrate, generally for the purpose of fixing 
bail, or for a discharge, if, in the judgment of the justice, there 
is not sufficient evidence to hold the accused to answer before 
the grand jury, where the procedure is by indictment, or before 
the court, where the procedure is by information. In homi- 
cide cases, in addition to the preliminary examination, there 
is generally an inquest into the cause of death. Where the 
accused is taken before a magistrate, strictly speaking, or be- 
fore the coroner, unless otherwise provided by statute, and 
whether cautioned or not, his confession is admissible in evi- 
dence against him, unless, as will hereafter be more fully 
shown, such confession was brought about by some induce- 
ment that renders the confession untrustworthy, or has in- 
duced a false confession. This is the universal rule in the 
United States, the mere fact that the accused is under arrest 
not being sufficient to exclude confession.^^ 

13 Peck V. State, 147 Ala. 100, 41 pie, 19 Colo 438, Z6 Pac. 153 ; Tut- 
So. 759; Seaborn v. State, 20 Ala. tie v. People, 33 Colo. 243, 70 
15, 17; Sampson v. State, 54 Ala. L.R.A. 33, 79 Pac. 1035, 3 A. & E. 
241, 243; Kelly v. State, 72 Ala. Ann. Cas. 513; District of Colum- 
244; Wilson v. State, 110 Ala. 1, bia Comp. Stat. 1894, chap. 20, § 
55 Am. St. Rep. 17, 20 So. 415; 29 (like U. S. Rev. Stat. § 860, U. 
Jones V. State, 137 Ala. 12, 34 So. S. Comp. Stat. 1901, p. 661) ; Or- 
681; Jones v. State, 120 Ala. 303, tis v. State, 30-Fla. 256. 283, 11 So. 
25 So. 204; Angling v. State. 137 611; Jenkins v. State, 35 Fla. 737, 
Ala. 17, 34 So. 846; Code Crim. 48 Am. St. Rep. 267, 18 So. 182: 
Proc 1900, § 312 (like Or. Anno. Green v. State, 40 Fla. 474, 24 So. 
Codes, 1892, § 1599) Alaska; Peo- 537, 11 Am. Crim. Rep. 253; Ma- 
ple V. Kelley, 47 Cal. 125; People v. Nish v. State, 45 Fla. S3, 110 Am. 
Gibbons, 43 Cal. 557; People v. St. Rep. 65, 34 So. 219, 12 Am. 
Taylor, 59 Cal. 650 ; People v. Wie- Crim. Rep. 125 ; Ferrell v. State, 45 
ger, 100 Cal. 352, 357, 34 Pac. 826; Fla. 26, 34 So. 220; Cicero v. State, 
People V. Sexton, 132 Cal. 37, 64 54 Ga. 156; Woolfolk v. State, 81 
Pac. 107 ; People v. Chrisman, 135 Ga. 564. 8 S. E. 724 ; Henderson v. 
Cal. 282, 67 Pac. 136; Tormv.Feo- State, 95 Ga. 326, 22 S. E. 537; 



1280 



EVIDENCE IN CRIMINAL CASES. [CHAP XIV 



Green v. State, 124 Ga. 343, 52 S. E. 
431 ; Austine v. People, 51 111. 236, 
239; Anderson v. State, 26 Ind. 89; 
Davidson v. State, 135 Ind. 254, 
260, 34 N. E. 972; Ginn v. State. 
161 Ind. 292, 68 N. E. 294; State 
V. Briggs, 68 Iowa, 416, 424, 27 N. 
W. 358; State v. Carroll, 85 Iowa, 
1, 51 N. W. 1159; State v. Clifford, 
86 Iowa, 550, 553, 41 Am. St. Rep. 
518, 53 N. W. 299; State v. Van 
Tassel, 103 Iowa, 6, 72 N. W. 497; 
State V. Sorter, 52 Kan. 531, 539, 34 
Pac. 1036; State v. Taylor, 36 Kan. 
329, 13 Pac. 550; State v. Finch, 71 
Kan. 793, 81 Pac. 494; Tines v. 
Com. 25 Ky. L. Rep. 1233, 77 S. W. 
363; Seaborn v. Co>m. 25 Ky. L. 
Rep. 2203, 80 S. W. 223; Bess v. 
Co»t. 118 Ky. 858, 82 S. W. 576; 
State V. Garvey, 25 La. Ann. 191 ; 
State V. Robinson, 52 La. Ann. 616, 
27 So. 124 ; State v. Gilman, 51 Me. 
206; State v. Bozw^, 61 Me. 174; 
Faunce v. Gray, 21 Pick. 245 ; Jiidd 
V. Gibbs, 3 Gray, 539, 543 ; Co?h. v 
King, 8 Gray, 503; Com. v. Lannan 
13 Allen, 563, 569; Com. v. i^^ 
HoW,y, 122 Mass. 455, 458; Com. v 
Wesley, 166 Mass. 248, 252, 44 N 
E. 228; Com. v. Hnnton, 168 Mass 
130, 46 N. E. 404 ; People v. Lauder, 

82 Mich. 109, 46 N. W. 956; Jose- 
phine V. State, 39 Miss. 626, 650; 
Jackson V. State, 56 Miss. 312 ; Far- 
kas V. 5"/fl?^, 60 Miss. 847; Ford v. 
State, 75 Miss. 101, 21 So. 524; 
Powell V. 5/af^, — Miss. — , 23 So. 
266; Steele v. State, 76 Miss. 387. 
24 So. 910; Mackmasters v. State, 

83 Miss. 1. 35 So. 302; State v. 
Lamb, 28 Mo. 218, 228; State v. 
Young, 119 Mo. 495, 507, 517, 24 
S. W. 1038; State v. Wisdom, 119 
Mo. 539, 546, 551, 24 S. W. 1047; 



State V. David, 131 Mo. 380, 33 S. 
W. 28; State v. Punshon, 133 Mo. 
44, 34 S. W. 25 ; State v. Hagan, 164 
Mo. 654, 65 S. W. 249; State v. 
Jones, 171 Mo. 401, 94 Am. St. Rep. 
786, 71 S. W. 680; State v. Mul- 
lins, 101 Mo. 514, 14 S. W. 625; 
State V. Woodward, 182 Mo. 391, 
103 Am. St. Rep. 646, 81 S. W. 857 ; 
State V. O'Brien, 18 Mont. 1, 43 
Pac. 1091, 44 Pac. 399; Clough v. 
State, 7 Neb. 320, 340; Wood v. 
Weld, Smith (N. H.) 367; State v. 
Banusik, — N. J. L. — , 64 Atl. 
994; Hendrickson v. People, 10 N. 
Y. 13, 61 Am. Dec. 721; People v. 
McMahon, 15 N. Y. 384; Teachont 
V. P^o/)/^, 41 N. Y. 7; People v. 
Mondon, 103 N. Y. 213, 57 Am. 
Rep. 709, 8 N. E. 496; People v. 
Chapleau, 121 N. Y. 266, 24 N. E 
469; People v. Wright, 136 N. Y. 
625, 632, 32 N. E. 629; People v. 
Molineux, 168 N. Y. 264, 62 L.R.A. 
193, 61 N. E. 286; State v. Brough- 
ton, 29 N. C. (7 Ired. L.) 96, 45 
Am. Dec. 507; State v. Cowan, 2^J 
N. C. (7 Ired. L.) 239; State v. 
Patterson, 68 N. C. 292; 5"/afe v. 
Rogers, 112 N. C. 874, 876, 17 S. 
E. 297; State v. DcGraff, 113 N. C. 
688, 693, 18 S. E. 507; State v. 
Melton, 120 N. C. 591, 26 S. E. 
933; State v. Parker, 132 N. C. 
1014, 43 S. E. 830, 12 Am. Grim. 
Rep. 137; State v. Simpson, 133 N. 
C. 676, 45 S. E. 567, 15 Am. Grim. 
Rep. 611 ; Jackson v. State, 39 Ohio 
St. 37, 39 ; State v. Hatcher, 29 Or. 
309, 44 Pac. 584; State v. Robinson. 
32 Or. 43. 48 Pac. 357: State v. An- 
drews, 35 Or. 388, 58 Pac 765; 
Com. V. Harman, 4 Pa. 269; Wil- 
Hams V. Com. 29 Pa. 102. 105; Com.. 
V. Clark, 130 Pa. 641, 650, 18 Atl. 



§ 622c] 



CONFESSIONS. 



1281 



4. Statement before a Hre inquest. — The rule also applies 
to the confession made by accused where he was summoned as 
a witness at a fire inquest.^* 

5. Statement before a grand jury. — Where the accused vol- 
untarily testifies under oath before a grand jury, his confes- 
sion may be given in evidence against him.^^ But, if -the ac- 
cused is taken before the grand jury and compelled to testify, 
by it, and not voluntarily, such a confession cannot be used 
in evidence against him.^^ 



988; State v. Vaigneur, 5 Rich. L. 
395, 402; State v. Branham, 13 S. 
C. 389 ; Stale v. Senn, 32 S. C. 392, 
11 S. E. 292; State v. Merriman, 34 
S. C. 38, 12 S. E. 619; Beggarly v. 
State, 8 Baxt. 521, 525; Alston v. 
State, 41 Tex. 40; Bell v. State, 33 
Tex. Crim. Rep. 163, 25 S. W. 769 ; 
Wisdom V. State, 42 Tex. Crim. 
Rep. 579, 61 S. W. 926 ; Grimsinger 
V. State, 44 Tex. Crim. Rep. 1, 69 
S. W. 583 ; Twiggs v. State, — Tex. 
Crim. Rep. — 75 S. W. 531 ; Mil- 
ler V. State, — Tex. Crim. Rep. — , 
■91 S. W. 582; United States v. 
Fries, Wharton, Am. St. Tr. 482, 
535, 595; United States v. Graff, 
14 Blatchf. 381, 385, Fed. Cas. No. 
15,244; Wilson v. United States, 
162 U. S. 613, 40 L. ed. 1090, 16 
Sup. Ct. Rep. 895; Hardy v. Unit- 
ed States, 186 U. S. 224, 46 L. ed. 
1137, 22 Sup. Ct. Rep. 889; United 
States V. Kimball, 117 Fed. 156; 
Burrell v. Montana, 194 U. S. 572, 
48 L. ed. 1122, 24 Sup. Ct. Rep. 
787; United States v. Kirkwood, 5 
Utah, 124, 127, 13 Pac. 234; Cham- 
berlain V. Willson, 12 Vt. 491, 493. 
36 Am. Dec. 356, per. Redfield, J.; 
Moore v. Com. 2 Leigh, 702, 704; 
Crim. Ev. Vol. XL— 81. 



Hite V. Com. 96 Va. 489, 31 S. E. 
895 ; State v. Hopkins, 13 Wash. 5, 
42 Pac. 627; State v. Carpenter, 32 
Wash. 254, 72, Pac. 357; State v. 
Washing, 36 Wash. 485, 78 Pac. 
1019; State v. Hobbs, Z7 W. Va. 
812, 818, 17 S. E. 380; Schoeffler v. 
State, 3 Wis. 823, 839; Dickerson v. 
State, 48 Wis. 288, 4 N. W. 321; 
State V. Glass, 50 Wis. 218, 221, 36 
Am. Rep. 845, 6 N. W. 500. 

1* Com. V. Wesley, 166 Mass. 248, 
44 N. E. 228; Com. v. Bradford, 
126 Mass. 42 ; Cotn. v. King, 8 Gray, 
501; State v. Blay, 77 Vt. 56, 58 
Atl. 794. 

15 State V. Carroll, 85 Iowa, 1, 51 
N. W. 1159; Grimsinger v. State, 
44 Tex. Crim. Rep. 1, 69 S. W. 583 ; 
Giles V. State, 43 Tex. Crim. Rep. 
561, 67 S. W. 411 ; Thomas v. State, 
35 Tex. Crim. Rep. 178, 32 S. W. 
771 ; United States v. Kirkwood, 5 
Utah, 123, 13 Pac. 234. See also 
89 Miss. 429, 42 So. 601, and notes 
in 28 L.R.A. 318, and in 9 L.R.A. 
(N.S.) 533. 

16 State V. Clifford, 86 Iowa, 550, 
41 Am. St. Rep. 518, 53 N. W. 299; 
Davis V. State, 122 Ga. 564, 50 S. E. 
376. 



1282 EVIDENCE IN CRIMINAL CASES. [CHAP XIV. 

6. Statement before the court, on trial of another. — Where 
the accused made a statement under oath, before he was 
charged with the crime, at the preliminary examination, or on 
the trial of another person, such confession is admissible 
against him." 

§ 622d. Confessions of third persons not admissible. — 
In civil proceedings, a statement of fact against interest, or an 
admission against interest, is admitted on the ground that it 
would not be made unless compelled by truth, and for this rea- 
son it is considered as trustworthy as if testified to on trial 
and under cross-examination. Such statements are confined 
to pecuniary or proprietary interests, and have no application 
to criminal cases.^ 

As the only value of human testimony rests on the integrity 
and honesty of the witness, it is an anomalous condition of the 
law of evidence that admits only those statements as trust- 
worthy which can be construed as against the interests of the 
party making them. If a w'itness cannot be trusted in his en- 
tire statement, both upon reason and authority it should be 
entirely rejected. If it is accepted as trustworthy when made 
against interest, upon reason, at least, it should be equally 
trustworthy when made in favor of his interests. A defendant 
in a civil proceeding is placed in a very compromising position 
when the court must hold, or the jury be told, that his credi- 
bility is measured wholly by his personal interests, as they may 
exist at the time he testifies. This rule, however, has never 
been applied to criminal cases, so as to admit the statement of 

^"f People V. Mitchell, 94 Cal 550, Park. Crim. Rep. 595; State v. 

29 Pac. 1106; Burnett v. State, S7 Vaigneiir, 5 Rich. L. 391; Robin- 

Ga. 622, 13 S. E. 552; State v. Lew- son v. State, — Tex. Crim. Rep. 

is, 39 La. Ann. 1110, 3 So. 343; — , 63 S. W. 869; Dickerson v. 

People V. Burt, 51 App. Div. 106, State. 48 Wis. 288, 4 N. W. 321. 

15 N. Y. Crim. Rep. 43, 64 N. Y. ^ State v. Soper, 16 Me. 293, Z3 

Supp. 417; People v. Thayer, 1 Am. Dec. 665. 



622d] 



CONFESSIONS. 



1283 



a third person, even where such statement is a direct confes- 
sion of crime. But confessions of crime, or statements of facts 
against penal interests, when made by third persons, are uni- 
versally excluded by the courts.^ But for this limitation in 
penal cases, it is evident that extrajudicial confessions would 
be admissible upon the ground that the fact of the crime con- 
fessed is directly against the interest of the accused. 

The inconsistent but prevailing doctrines, first, that admis- 
sions against interest, of third persons, are always to be ex- 
cluded in penal cases, and, second, that the confessions of the 



^ Blair V. Hopkins, 3 N. B. 540 
(Canada) ; Smith v. State, 9 Ala. 
995; Snozv v. State, 58 Ala. 375; 
West V. State, 76 Ala. 99; Welsh 
V. State, 96 Ala. 92, 11 So. 450; 
People V. Hall, 94 Cal. 595, 30 Pac. 
7; Benton v. Starr, 58 Conn. 285, 
20 Atl. 450; Lyon v. State, 22 Ga. 
399; Daniel v. State, 65 Ga. 199: 
Kelly V. State, 82 Ga. 441. 9 S. E. 
171 ; Delk v. State, 99 Ga. 667, 26 
S. E. 752; Loivry v. State, 100 Ga. 
574, 28 S. E. 419; Robison v. State, 
114 Ga. 445, 40 S. E. 253 ; Perdue v. 
State, 126 Ga. 112, 54 S. E. 820; 
Jones V. State, 64 Ind. 473, 484; 
Hauk V. State, 148 Ind. 238, 46 N. 
E. 127, A7 N. E. 465; Reilley v. 
State, 14 Ind. 217; State v. Sale, 
119 Iowa, 1, 92 N. W. 680. 95 N. 
W. 193; Miller v. State, 165 Ind. 
566. 76 N. E. 245; Com. v. Elisha, 
3 Gray, 460; Davis v. Com. 95 Ky. 
19. 44 Am. St. Rep. 201. 23 S. W. 
585; State v. West, 45 La. Ann. 
928. 920. 13 So. 173; State v. Mit- 
chell. 107 La. 618. 31 So. 9^3 ; Pike 
V. Crehore, 40 Me. 503, 511; Mun- 
shozver v. State. 55 Md. 11, 18. 39 
Am. Rep. 414; Com. v. Chabbock, 1 



Mass. 144; Com. v. Densmore, 12 
Allen, 537; Farrell v. Weits, 160 
Mass. 288, 35 N! E. 783; Com. v. 
Chance, 174 Mass. 245, 75 Am. St. 
Rep. 306, 54 N. E. 551 ; People v. 
Stevens, 47 Mich. 411, 11 N. W. 
220; People v. Hutchings, 137 Mich. 
527, 100 N. W. 753 ; Helm v. State, 
67 Miss. 572, 7 So. 487; State v. 
Evans. 55 Mo. 460; State v. Dun- 
can, 116 Mo. 288, 311, 22 S. W. 699; 
State V. Hack, 118 Mo. 92, 98, 23 
S. W. 1089; Mays v. State, 72 Neb. 
723, 101 N. W. 979; Greenfield v. 
State, 85 N. Y. 75, 86, 88, 39 Am. 
Rep. 636; State v. May, 15 N. C. 
(4 Dev. L.) 332; State v. Duncan, 
28 N. C. (6 Ired. L.) 239; State v. 
White, 68 N. C. 158; State v. 
Haynes, 71 N. C. 84; State v. Bis- 
hop, 72, N. C. 44, 1 Am. Crim. Rep. 
594; State v. Fletcher, 24 Or. 295, 
300, 33 Pac. 575; Wriqht v. State, 
9 Yerg. 344; Rhea v. State, 10 Yerg. 
260; Sible v. State, 3 Heisk. 137; 
Peck V. State. 86 Tenn. 259, 6 S. 
W. 389; State v. Toften, 72 Vt. 73, 
47 Atl. 105 ; Reavis v. State, 6 Wyo. 
240, 44 Pac. 62. 



1284 EVIDENCE IN CRIMINAL CASES. [CHAP XIV. 

accused are always to be received (unless rendered untrust- 
worthy by improper inducement), ought not longer to prevail. 
If the direct confessions of the accused are to be received, then 
the direct statements of third persons ought to be received.' 
The doctrine of confessions never had any rightful founda- 
tion in the hearsay exceptions to the rule of evidence ; for, not- 
withstanding the ingenious and plausible explanation of those 
writers who seem to feel that they must account, upon prin- 
ciples of logic, for the anomalies in the law, extrajudicial con- 
fessions are, and must always remain, hearsay evidence, pure 
and simple. If A goes to B, an officer, claiming that C has 
committed an offense, what A says to B out of the presence of 
C is so purely hearsay that no court would admit it. The fact 
that A accuses himself to B, as having committed the crime, 
is no less hearsay when B attempts to state the fact as it was 
stated to him. No court ought to receive B's statement under 
any condition. But the fact exists, and, if it can be accounted 
for at all, it is most logically found in that exception to the 
rule of evidence which admits statements against interest but 
makes a farcical exception as to such admissions in penal cases. 
The rule exists, but there is a fortunate tendency, so to limit 
and restrain the modern confession that it will, at least, have 
the semblance of testimonial trustworthiness, rather than, as 
now used, a convenient means of evading investigation into the 
facts on the part of the prosecution, and submitting the accused 
to the law prevalent in the oriental nations, that the accused 
ought to establish his own innocence. 

§ 622e. Reasons for exclusion. — The distrust attaching 
to confessions is based on experience. In every situation in- 
volving a stress on the physical or mental well-being, the natu- 
ral impulses dominate the reasoning faculties. Any alternative 
that promises relief from a present intolerable situation is ac- 

•Wigmore, Ev. § 1477. 



§ 622e] CONFESSIONS. 1285 

cepted without regard to consequences. We can reason that 
under given conditions it is natural to act in a certain way. 
The logic may be impregnable, but the practical results are in 
striking contrast to the theoretical deductions. We may rea- 
son that a man of mature years, having due regard for his 
financial credit and honor, will act with great caution and de- 
liberation before placing himself in financial danger, yet, under 
a sudden and unexpected stress, the same man will consent to 
conditions that he knows are financially ruinous, merely as 
a relief from the sudden stress. A physician may promise 
ultimate relief from disease, as a condition for ceasing the use 
of drugs that give a temporary relief, but the promise of an 
ultimate benefit has no weight as against the stress of the 
prevailing condition. These common experiences are univer- 
sal. Such being the fact as to financial or physical conditions, 
in desperate situations the action taken is more destructive. 
When the primary feelings are stirred, the reasoning faculties 
are practically suspended. This arises wherever an innocent 
person is suddenly accused of an offense involving reputation, 
life, or liberty. In such a situation he will choose any risk 
that may exist in an untrue confession, hoping for some fortui- 
tous deliverance when the future situation connected with such 
false confession may become acute, and accept it as a present 
relief. Under a promise of relief, such a person will choose 
to make a false confession as the speediest way to make his 
freedom certain. Under a threat he will confess, as the speed- 
iest way out of a probable injury. Here, then, there is no cer- 
tainty of obtaining the only element that is of value, to wit, 
trustworthy testimony. Testimonial worthlessness, then, is the 
underlying and fundamental principle on which confessions 
are rejected.^ 

1 Gilbert, Ev. 137; Rex v. War- & B. C. C. 58, 25 L. T. Mag. Cas. 
ickslwll. 1 Leach, C. L. 263 ; 6 Car. N. S. 128, 2 Jur. N. S. 1096, 4 
& P. 353, note; Reg. v. Scott, Dears. Week. Rep. 777, 7 Cox, C. C. 164; 



1286 



EVIDENCE IN CRIMINAL CASES. [CHAP XIV. 



The question then arises, Was the situation such that there 
was a reasonable probability that the accused would make a 
false confession? If so, the confession must be excluded.^ 

However differently it may be expressed, herein is the cru- 
cial test, and all safeguards with which courts have sought to 
surround confession testimony tend to secure such an accurate 
history of the testimony, with regard to the conditions sur- 



Reg. V. Mansfield, 14 Cox, C. C. 
639; Reg. v. Doyle, 12 Ont. Rep. 
354 ; Pennsylvania v. Dillon, 4 Dall. 
116, 1 L. ed. 765; State v. Vaigncnr, 
5 Rich. L. 400; Sel. Crim. Trials, 
at Old Bailey, 1 App. 23, 24 ; Com. 
V. Morey, 1 Gray, 462; People v. 
Thorns, 3 Park. Crim. Rep. 26S ; 
Beery v. United States, 2 Colo. 210; 
People V. Wolcott, 51 Mich. 615, 17 
N. W. 78 ; Com. v. Myers, 160 Mass. 
530, 532, 36 N. E. 481 ; State v. Wil- 
lis, 71 Conn. 293, 41 Atl. 820; State 
V. Novak, 109 Iowa, 717, 79 N. W. 
465; Reg. v. Baldry, 2 Den. C C. 
432, 446, 21 L. J. Mag. Cas. N. S. 
130, 16 Jur. 599, 5 Cox, C. C. 523 ; 
Garrard v. State, 50 Miss. 151 ; 
Cornwall v. State, 91 Ga. 277, 233, 
18 S. E. 154; Bullock v. State, 65 
N. J. L. 557, 86 Am. St. Rep. 668, 
47 Atl. 62 ; Starkie, Ev. 1, 52 ; Joy, 
Confessions, 51; Appleton, Ev. 
chap. 11, p. 174. 

^Rex V. CoJirt, 7 Car. & P. 4S6; 
Rex V. Thomas, 7 Car. & P. 346 ; 
Reg. V. Holmes, 1 Car. & K. 248, 
1 Cox, C. C. 9; Reg. v. Hornbrook, 
1 Cox, C. C. 54; Reg. v. Garner, 1 
Den. C. C. 331, 3 New Sess. Car,. 
329, Temple & M. 7, 2 Car. & K. 
920, 18 L. J. Mag. Cas. N. S. 1, 12 
Jur. 944, 3 Cox, C. C. 175 ; Reg. v. 
Reason, 12 Cox, C. C. 229; State 
V. Kirby, 1 Strobh. L. 387; Fife v. 



Com. 29 Pa. 437; United States v. 
Stone, 8 Fed. 232, 241. 256; Beck- 
ham V. State, 100 Ala. 15, 17, 14 Sa 
859; Reg. v. Baldry, 2 Den. C. C. 
430, 444, 21 L. J. Mag. Cas. N. S. 
130, 16 Jur. 599, 5 Cox, C C. 523 ; 
Reg. V. Gillis, 11 Cox, C. C. 73, 14 
Week. Rep. 845; Carroll v. State, 
23 Ala. 38, 58 Am. Dec. 282 ; Young 
V. State, 68 Ala. 575; Williams v. 
State, 63 Ark. 527, 39 S. W. 709; 
Swift, Ev. (Conn.) 131; Com. v. 
Kjwpp, 9 Pick. 503, 20 Am. Dec. 
491 ; Com. v. Tuckerman, 10 Gray. 
191 ; Com. v. Cuffee, lOS Mass. 288; 
State V. Staley, 14 Minn. 113, Gil. 
75; Frank v. State, 39 Miss. 711; 
State V. Patterson, 73 Mo. 706; 
State V. Phelps, 74 Mo. 128; State 
V. Anderson, 96 Mo. 249, 9 S. W. 
636; State v. Carrick, 16 Nev. 128: 
People V. McGloin, 91 N. Y. 246: 
State V. Mitchell, 61 N. C. (Phill. 
L.) 449; Price v. State, 18 Ohio 
St. 419; State v. Motley, 7 Rich. I, 
337; Deathridge v. State, 1 Sneed. 
79; United States v. Graff, 14 
Blatchf. 387, Fed. Cas. No. 15.244; 
Hopt V. Utah, 110 U. S. 585, 28 L. 
ed. 267, 4 Sup. Ct. Rep. 202. 4 Am. 
Crim. Rep. 417; Smith v. Com. 10 
Gratt. 737; Shifflet v. Com. 14 
Gratt. 661. 665; State v. Walker, 
34 Vt. 302. 



§ 622e] 



CONFESSIONS. 



1287 



rounding the confession, that there is no reasonable probabiHty 
that the confession is a false one. 

When the test results in establishing a true confession, or 
in rejecting a false confession, it has completely accomplished 
its purpose. 

The entire case law of confessions is thus simply codified 
into two essential elements : First, a confession is a direct ac- 
knowledgment of guilt of the offense charged; second, that 
the confession is a true one. 

That these are the fundamental principles that courts seek 
to apply is evident from the following cases, where, it is clear 
that the ultimate fact to be established is the truth of the con- 
fession.' 



^ State V. Gianfala, 113 La. 463, 
Z7 So. 30; State v. Leuth, 5 Ohio 
C. C. 94, 3 Ohio C. D. 48; Penn- 
sylvania V. Dillon, 4 Dall. 116, 1 L. 
ed. 765 ; Rice v. State, 3 Heisk. 
215; Com. v. Cullen, 111 Mass. 435; 
State V. Havelin, 6 La. Ann. 167 ; 
State V. Hopkirk, 84 Mo. 278; 
United States v. Stone, 8 Fed. 232 ; 
Beckham v. State, 100 Ala. 15, 14 
So. 859; People v. Smith, 3 How. 
Pr. 226; Roesel v. State, 62 N. J. 
L. 216, 41 Atl. 408; Rice v. State, 
22 Tex. App. 654, 3 S. W. 791 ; 5m/- 
lock V. State, 65 N. J. L. 557, 86 
Am. St. Rep. 668, 47 Atl. 62 ; Peo- 
ple V. Wents, 37 N. Y. 304; Com. v. 
Cuffce, 108 Mass. 285; Com. v. 
Knapp, 9 Pick. 496, 20 Am. Dec. 
491; State v. l-Villis, 71 Conn. 293, 
41 Atl. 820; State v. Jonas, 6 La. 
Ann. 695 ; Com. v. Myers, 160 Mass. 
530, 36 N. E. 481 ; People v. Wol- 
cott, 51 Mich. 612, 17 N. W. 78: 
Cady V. State, 44 Miss. 332; State 
V. Johnny, 29 Nev. 203, 87 Pac. 3; 
State V. DeHart, 38 Mont. 211, 99 



Pac. 438; O'Brien v. People, 48 
Barb. 274; State v. Roberts, 12 N. 
C. (1 Dev. L.) 259; State v. Vey. 
21 S. D. 612, 114 N. W. 719; Stat^ 
V. Landers, 21 S. D. 606, 114 N. W. 
717; Reg. v. Thompson [1893] 2 Q. 
B. 12, 62 L. J. Mag. Cas. N. S. 93. 
5 Reports, 392, 69 L. T. N. S. 22. 
41 Week. Rep. 525, 17 Cox, C. C. 
641, 57 J. P. 312; State v. Strong, 
12 Ohio S. & C. P. Dec. 698 ; Rex v. 
Radford, cited in note to Rex v. 
Gilham, 1 Moody, C. C. 186; State 
V. Woodward, 182 Mo. 391, 103 
Am. St. Rep. 646, 81 S. W. 857; 
Cortez V. State, 47 Tex. Crim. Rep. 
10, 83 S. W. 812; State v. Gilbert, 
2 La. Ann. 245; State v. Fields, 
Peck (Tenn.) 140; State v. Car- 
rick, 16 Nev. 120; Rex v. Radford 
cited in note to Reg. v. Moore, 2 
Lead. Crim. Cas. (Bennett & H.) 
187 ; Rex v. Day, 2 Cox, C. C. 209 ; 
Reg. V. Fleming, Armstrong, M. & 
O. 330, cited in Bram v. United 
States, 168 U. S. 553, 42 L. ed. 577, 
18 Sup. Ct. Rep. 183. 10 Am. Crim. 



1288 EVIDENCE IN CRIMINAL CASES. [CHAP XIV. 

§ 622f. Method of obtaining. — The familiar principle, 
that arresting officers have no power or authority other than 
to arrest and safely keep a person charged with an offense until 
the matter can be inquired of in the decent and orderly fashion 
prescribed by law, has never prevailed in practice. The arrest- 
ing officer has always assumed that it was within his power to 
institute a summary inquisition, and to extort from the party 
suspected a statement that would confirm his suspicion. As 
early as 1628 King Charles I., desirous of knowing whether 
or not the accused could be put to the rack, was ansv/ered by 
all the justices that *'he could not, by the law, be tortured by 
the rack, for no such punishment is known or allowed by our 
law." ^ Yet it is clear that torture was resorted to as late as 
1640,^ and in Scotland as late as 1676.' When the justices 
answered King Charles I., that punishment by the rack was 
not known to, or allowed by, the law, they may have spoken 
correctly on the ground that they did not judicially know of 
such punishment, but, as men, they must have known that 
punishment by the rack was of common occurrence. 

The principle in the 1500's and 1600's was get a confession 
from the prisoner. The principle still prevails. The method 
of obtaining the confession in those years does not differ from 
the method used to-day, except in the physical means employed. 
In the year 1902, in the state of Mississippi, to extort a con- 
fession, a prisoner was confined in a sweat box 5 or 6 feet by 
8 in size, carefully blanketed to exclude all light and air.* If 
the governor of the state had asked the opinion of the Missis- 
Rep. 547; Reg. v. Scott, Dears. & B. 3 Mitchel's Trial, 6 How. St. Tr. 
C. C. 58, 25 L. J. Mag. Cas. N. S. 1207. 

128. 2 Jur. N. S. 1096, 4 Week. Rep. ^Ammons v. State, 18 L.R.A. 

777, 7 Cox, C. C. 164. (N.S.) 768. 

^ Felton's Trial, 3 How. St. Tr. An elaborate note to this case 

371. treats at length, with a full re- 

2 Judicial Use of Torture, 11 view of the authorities, the ques- 
Harvard L. Rev. 293 tion when confession is voluntary. 



§ 622f] CONFESSIONS. 1289 

sippi judges as to whether or not a prisoner ought to be tor- 
tured, the answer would have been that no such punishment 
was known or allowed by the law of the state. Technically, 
the answer would be correct. Practically, any police officer can 
recite instances showing that such torture not only prevails, 
but is commended by the police system in every city, as a prop- 
er process of elimination. It was stated by Mr. Justice Brown, 
of the United States Supreme Court,^ that, "if an accused per- 
son be asked to explain his apparent connection with a crime 
under investigation, the ease with which the questions put to 
him assume an inquisitorial character, the temptation to press 
the witness unduly, to browbeat him if he be timid or reluctant, 
to push him into a corner, and to entrap him into fatal con- 
tradictions, is so painfully evident in many of the earlier state 
trials that it made the system so odious as to give rise to a 
demand for its total abolition." 

It was the iniquity of this system that caused the American 
colonists to incorporate as a part of their fundamental law 
that no person could be compelled to accuse himself. Yet, 
notwithstanding the constitutional safeguards, the inquisition 
still prevails, and is as fruitful of results to-day as it has ever 
been since its establishment. The situation was so acute in 
one of the western states, and public opinion became so 
aroused, that in 1909 the general assembly of the state of 
Colorado passed an act making the coercion of prisoners, on 
the part of any person having authority to arrest or to detain 
in custody, by threats, either in words or physical act, or by 
beatings, a felony.^ The continuity of the system is shown in 

^ Brown v. Walker, 161 U. S. of police of the city and sheriff of 

591, 40 L. ed. 819, 5 Inters. Com. the county are frequently merged 

Rep. 369, 16 Sup. Ct. Rep. 644. in one person. Under this merger 

8 Colo. Sess. Laws, 1909, p. 468. it is obvious that, under the police 

Under the general practice of system, the arresting officers per- 

consolidating large cities into a form with complete immunity all 

city and county, the offices of chief the functions of the court in male- 



1290 



EVIDENCE IN CRIMINAL CASES. [CHAP XIV. 



the fact that a confession is adduced in practically every case 
in which an information is filed or an indictment found. 



ing a more or less temporary dis- 
position of the criminal classes. 
When a crime is committed there 
is a general arrest of all suspected 
or known criminals, and, by pro- 
cesses more or less severe, the 
numbers are eliminated until the 
one who is guilty is actually de- 
termined upon. When such crim- 
inal has confessed, he is taken be- 
fore the court for sentence, the 
severity and length of his sentence 
depending upon the attitude of the 
poHce towards the accused. The 
question of trial is not considered. 
This, of course, has to do gen- 
erally with petty property crimes. 
In the more serious ofifenses the 
party suspected is arrested, he is 
placed on his inquisition before 
the chief of police, and a state- 
ment is obtained. The testimonial 
worthlessness of such a statement 
is obvious. If the confession made 
is not to the liking of the system, 
or if it in any way questions the 
sagacity of the officers, another in- 
quisition is generally more suc- 
cessful, success being measured by 
an approach to what the system 
considers the confession ought to 
be. Where the office of the district 
attorney is in political harmony 
with the police system, the district 
attorney is generally invited to be 
present as an inquisitor. If the 
accused suggests that he has wit- 
nesses, these are in turn arrested, 
and an inquisition made of them. 
When a statement is obtained, 
the accused is then remanded to 



jail, when, for the first time, he is 
permitted to see and confer with 
counsel regarding his defense. If 
the police system is favorably im- 
pressed, or feels that there are ex- 
tenuating circumstances, the ac- 
cused may, by the favor of the po- 
lice, obtain a fair trial. Under the 
American system, however, the pre- 
siding judges are generally in 
political harmony with the police 
system, and that presentation of a 
defense is regarded by the trial 
judges as a somewhat irritating 
invasion of a status that has been 
fixed by the system. This con- 
dition is well known, and is uni- 
versally prevalent. It arises en- 
tirely from an assumption of 
authority and an acquiescence in 
the subversion of authority by the 
courts. The submerged classes 
are helpless, because their freedom 
depends entirely upon the aid that 
they can render to the system. 

This great and momentous matter 
arises out of the fact that arresting 
officers are allowed to assume func- 
tions that belong exclusively to the 
courts. The remedy is plain. A 
statute making it a felony to do 
aught with a prisoner than to arrest 
and immediately convey the prisoner 
to the proper jail, and making it 
a felony for any person, under any 
authority, to seek to extract a state- 
ment, would quickly rid the com- 
munity of this menace to human 
liberty. But it is far more easy 
for the prosecuting officers to make 
the prisoner himself furnish evi- 



622g\ 



CONFESSIONS. 



1291 



§ 622g. True confession not excluded because involun- 
tary. — Under the fundamental principle of exclusion, 
namely, that the only confession that can be excluded is the 



dence, than to make an investiga- 
tion, hence the practice will con- 
tinue to prevail until it is extir- 
pated by some radical measure. 

The system is as prevalent in 
England as it is in America; but 
there the judges, having a tenure 
of office independent of the political 
system, have sought to ameliorate 
the oppressive conditions by re- 
fusing to allow in evidence any 
confesions made in response to the 
inquisition of arresting officers. 
This attitude is fully illustrated in 
the expressions from the following 
cases, which were considered to be 
sufficient inducement to exclude the 
confession : 

"It would be better for you to 
confess." Rex v. Griffin, Russ, & 
R. C. C. 151 (1809). 

"You are under suspicion of 
this, and you had better tell all 
you know." Rex v. Kingston, 4 
Car. & P. 387 (1830). 

"You had better tell the truth 
or it will lie upon you, and the man 
go free." Rex v. Enoch, 5 Car. & 
P. 539 (1833). 

"It is no use for you to deny it, 
for there is the man and boy who 
will swear they saw you do it." 
Rex V. Mills, 6 Car. & P. 146 
(1833). 

"There is no doubt thou wilt be 
found guilty, it will be better for 
you if you will confess." Sher- 
rington's Case, 2 Lewin, C. C. 
123 (1838). 

"You had better split, and not 



suiTer for all of them." Rex v. 
Thomas, 6 Car. & P. 353 (1833). 

"It will be a good deal worse 
for you if you do not, and it will be 
better for you if you do confess." 
Rex V. Simpson, 1 Moody, C. C. 
410 (1834). 

"If you are guilty, do confess; 
it will perhaps save your neck; you 
will have to go to prison; if Wil- 
liam H. [another person suspected 
and whom the prisoner had 
charged] is found clear, the guilt 
will fall on you. Pray, tell me if 
you did it." Rex v. Upchurch, 1 
Moody, C. C. 465 (1836). 

"I dare say you had a hand in it ; 
you may as well tell me all about 
it." Reg. V. Croydon, 2 Cox, C. C. 
67 (1846). 

"It will be better for you to 
speak out." Reg. v. Garner, 1 Den. 
C. C. 329, 3 New Sess. Cas. 329, 
Temple & M. 7, 2 Car. & K. 920, 
18 L. J. Mag. Cas. N. S. 1, 12 Jur. 
944, 3 Cox, C. C. 175 (1848). 

"You had better tell me about all 
the corn that is gone; it would be 
better for you to do so." Reg. v. 
Rose, 18 Cox, C. C. 717, 67 L. J. 
Q. B. N. S. 289, 78 L. T. N. S. 
119, 11 Am. Crim. Rep. 275 (1898). 

"She had better speak the truth." 
Reg. V. Moore, 2 Den. C. C. 523, 3 
Car. & K. 153, 21 L. J. Mag. Cas. 
N. S. 199, 16 Jur. 621, 5 Cox, C. C. 
555. 

"You had better, as good boys, 
tell the truth." Reg. v. Reeve, 12 
Cox, C. C. 179, 41 L. J. Mag. Cas. 



1292 



EVIDENCE IN CRIMINAL CASES. [CHAP XIV. 



false confession, it is clear that a true confession cannot be 
excluded, even where it is admittedly brought forth by torture. 



N. S. 92, L. R. 1 C. C. 362. 26 L. T. 
N. S. 403, 20 Week. Rep. 631. 

"I know what has been going on 
between you; you had better speak 
the truth." Reg. v. Hatts, 49 L. T. 
N. S. 780, 48 J. P. 248. 

And, applying the English rule, 
some American courts have ex- 
cluded confessions, based upon the 
following language, used as the 
inducement to make the con- 
fession : 

"You have got your foot in it, 
and somebody else was with you ; 
now, if you did not break open the 
door, the best thing you can do 
is to tell all about it, and to tell 
who was with you, and to tell the 
truth, the whole truth, and nothing 
but the truth." Kelly v. State, 72 
Ala. 244 (1882). 

"I don't think the truth will hurt 
anybody. It will be better for you 
to come out and tell all you know 
about it, if you feel that way." 
People V. Thompson, 84 Cal. 598, 
605, 24 Pac. 384 (1890). 

"It will be better for you to make 
a full disclosure." People v. Bar- 
ric, 49 Cal. 342, 1 Am. Crim. Rep. 
178. 

"If you do so it will go easy with 
you; it will be better for you to 
confess; the door of mercy is 
open and that of justice closed." 
Beery v. United States, 2 Colo. 186, 
188, 203 (1893). 

"The suspicion is general against 
you, and you had as well tell all 
about it, the prosecution will be 
no greater; I don't expect to do 



anything with you ; I am going to 
send you home to your mother." 
State V. Bostick, 4 Harr. (Del.) 
563 (1845). 

"Edmund, if you know anything, 
it may be best for you to tell it; 
Edmund, if you know anything, 
go and tell it, and it may be best 
for you." Green v. State, 88 Ga. 
516, 30 Am. St. Rep. 167, 15 S. E. 
10 (1891). 

"It will go better with you to 
tell where the money is, all I want 
is my money, and if you will tell 
me where it is, I will not prosecute 
you hard." Rector v. Com. 80 Ky. 
468 (1882). 

"It will be better for you to tell 
the truth and have no more trouble 
about it." Biscoe v. State, 67 Md. 
6, 8 Atl. 571 (1887). 

"You had better own up ; I was in 
the place when you took it ; we 
have got you down fine; this is not 
the first you have taken, we have 
got other things against you nearly 
as good as this." Com. v. Notl, 
135 Mass. 269 (1883). 

"You had better tell the truth." 
Com. V. Myers, 160 Mass. 530, 36 
N. E. 481 (1894). 

"It will be better for you to con- 
fess." People v. Wolcott, 51 Mich. 
612, 17 N. W. 78 (1883). 

"If you are guilty, you had bet- 
ter own it." State v. York, 37 N. 
H. 175 (1858). 

"The best you can do is to own 
up; it will be better for you." 
People V. Phillips, 42 N. Y. 200 
(1870). 



§ 622g] 



CONFESSIONS. 



.1293 



The difficulty, however, is in determining that the confession 
so made is actually the true confession, or the truth that it is 
sought to establish. Hence the rule that, if a confession is 
involuntary, it is false, courts generally preferring to contra- 
vene the fundamental principle of excluding only false con- 
fessions by substituting a general rule of exclusion, based en- 



"I believe you are guilty; if you 
are you had better say so; if you 
are not, you had better say that." 
State V. Whitfield, 70 N. C. 356 
(1874). 

"If you are guilty, I would ad- 
vise you to make an honest con- 
fession; it might be easier for you. 
It is plain against you." State v. 
Drake, 113 N. C. 624, 18 S. E. 166 
(1893). 

"You had as well tell all about 
it." Vaughan v. Com. 17 Gratt. 
576 (1867). 

"You had better tell the truth; 
you had better tell about it." Com. 
V. Preece, 140 Mass. 276, 5 N. E. 
494, 5 Am. Crim. Rep. 107 (1885). 

"It would be better for him to go 
back and tell Captain Plummer all 
about it; that he thought he would 
withdraw it, or ease it as light as 
he possibly could ; that he thought 
that Captain Plummer would help 
him out of it, if he would give his 
evidence against the other two, for 
the very reason that Plummer had 
told Kelly he would do so. And he 
thought he would do so for Under- 
wood." Territory v. Underzvood, 
8 Mont. 131, 19 Pac. 398 (1888). 

"Perhaps it will be much easier 
for you before a court or jury." 
State v. Jay. 116 Iowa, 265-268, 89 
N. W. 1070, 12 Am. Crim. Rep. 93. 



"Tom, this is mighty bad; they 
have got the 'dead wood' on you, 
and you will be convicted. . . . 
You are very young to be in such 
a difficulty as this; there must have 
been someone with you who was 
older, and I, if in your place, would 
tell who it was; it is not right for 
you to suffer the whole penalty and 
let some one who is guiltier go free ; 
that it might go lighter with you." 
Newman v. State, 49 Ala. 9, 1 Am. 
Crim. Rep. 173. 

"If you burnt the barn, you had 
better tell me of it." People v. 
Smith, 3 How. Pr. 226. 

"Better tell the truth; the white 
folks are going to break somebody's 
neck." Miller v. State, 94 Ga. 1, 21 
S. E. 128. 

"An honest confession is good 
for the soul." Matthews v. State, 9 
Lea, 128, 42 Am. Rep. 667. 

"That the best he [the prisoner] 
could do was to own up; that this 
would be better for him." Phillips 
V. People, 57 Barb. 362. 

"It would be better for you to tell 
the truth." "That it would be best 
for him to do what was right."' 
Ammons V. State, 80 Miss. 592, 18 
L.R.A.(N.S.) 768, 92 Am. St. Rep. 
607, 32 So. 9, 12 Am. Crim. Rep. 
82. 



1294 EVIDENCE IN CRIMINAL CASES. [CHAP XIV. 

tirely upon the voluntary or involuntary character of the con- 
fession, holding that the involuntary character renders it un- 
trustworthy. "No confession of guilt should be heard in evi- 
dence unless made voluntarily; for if made under the influence 
of either hope or fear there is no test of its truthfulness." ^ 

§ 622h. Practice on admission. — When it becomes 
necessary, in the course of a prosecution, to offer a certain 
class of evidence, and the proposing counsel knows that its 
admission will be disputed, and that therefore a ruling of the 
trial judge will be required before the evidence is properly 
admissible, a careful regard for orderly procedure demands 
that the details of the offer should not be stated in the hearing 
of the jury. This caution in no way impugns the intelligence 
or the impartiality of the jurors, but only seeks to safeguard 
the accused against the trial of the charge upon irrelevant tes- 
timony. The jurors, lacking the experience and training nec- 
essary to distinguish between relevant and irrelevant evidence, 
may take as true and relevant the evidence sought to be of- 
fered, even though it should be excluded by the judge. This 
general rule is often violated, innocently enough perhaps, but 
with most serious results, where the proposing counsel makes a 
preliminary statement to the trial judge as to the evidence 
which he desires to offer, or shows it in the questions put to 
the witnesses. It has always been the practice, in such exigen- 
cies, for the proposing counsel to present the offer in writing, 
without reading it aloud, to the trial judge and the opposing 
counsel, and, if argument is desired, to afford the court a 
chance to excuse the jury before making an oral statement and 
an argument upon the same.^ The same general rule should 

^ State V. JVhitficId, 70 N. C. 356; Gray, 190; Brozvn v. State, 32 Miss. 

Sampson V. State. 54 Ala. 243; Redd 450; State v. Coivan, 29 N. C. (7 

V. State, 69 Ala. 259 ; State v. Potter, Ired. L.) 244. 

18 Conn. 177; Young v. Com. 8 ^ Scripps v. Rei'ly, 38 Mich. 10; 

Bush, 370; Ca)n. v. Tuckennan, 10 Porter v. Throop, 47 Mich. 313, 11 



§ 622j] 



CONFESSIONS. 



1295 



govern the putting of questions to witnesses. Commenting on 
the repeated putting of improper questions to the defendant, 
the supreme court of Michigan says : "Had the defendant de- 
cHned to answer them, an unfavorable influence upon the 
minds of the jury must inevitably have been produced. "A 
list of questions which assume the existence of damaging facts 
may be put in such a manner, and with such persistency and 
show of proof, as to impress a jury that there must be some- 
thing wrong, even though the prisoner fully denies it and there 
is no other evidence." ^ 

These rules should be applied with great strictness when the 
offer concerns confession evidence.^ Such evidence is of a 
class that its very designation indicates its momentous impor- 
tance, and any wilful disregard of this rule, or any effort to 
get such evidence before the jury, by innuendo or indirection, 
and before the trial judge has had opportunity to pass upon its 
relevancy and admissibility, should be visited with the severest 
judicial censure. 

§ 622j. Burden of proof on admissibility; character ot 
evidence. — It is the duty of the trial judge to determine 
the voluntary or involuntary character of the confession evi- 
dence at the time it is offered.^ In accordance with the funda- 



N. W. 174; People v. AbcU, 113 
Mich. 80, 71 N. W. 509; State v. 
Rose, 178 Mo. 25, 76 S. W. 1003; 
Leahy v. State, 31 Neb. 566, 48 N. 
W. 390; State v. Moore, 104 N. C. 
744. 10 S. E. 183. 

^Galc V. People, 26 Mich. 157; 
People V. Wells, 100 Cal. 459, 34 
Pac. 1078. 

^Mose V. State, 36 Ala. 211; 
State V. Gruff, 68 N. J. L. 287, 53 
Atl. 88 ; Kirk v. Territory, 10 Okla. 
46, 60 Pac. 797; Harrold v. Terri- 
tory, 18 Okla. 395, 10 L.R.A.(N.S.) 



604, 89 Pac. 202, 11 A. & E. Ann. 
Cas. 818; State v. Stehbins, 188 
Mo. 387, 87 S. W. 460; Griner v. 
State, 121 Ga. 614, 49 S. E. 700; 
Ellis V. State, 65 Miss. 44, 7 Am. 
St. Rep. 634, 3 So. 188; Jackson v. 
State, 83 Ala. 76, 3 So. 847. 

^Bonner v. State, 55 Ala. 242; 
People V. Ah Hozv, 34 Cal. 218; 
Holland v. State, 39 Fla. 178, 22 
So. 298; Simon v. State, 5 Fla. 
285; Biscoe v. State, 67 Md. 6, 8 
At). 571 ; Com. v. Culver. 126 Mass. 
464, 3 Am. Crim. Rep. 81; Ellis v. 



1296 



EVIDENCE IN CRIMINAL CASES. [CHAP XIV. 



mental principle underlying criminal procedure, that the state 
must establish the offense charged, beyond a reasonable doubt, 
the burden of proof showing that no improper inducement ex- 
isted when the confession was made, falls upon the state.^ At 



State, 65 Miss. 44, 7 Am. St. Rep. 
634, 3 So. 188; Williams v. State, 
72 Miss. 117, 16 So. 296; State v. 
Rush, 95 Mo. 199, 8 S. W. 221; 
People V. Fox, 50 Hun, 604, 20 N. 
Y. S. R. 316, 3 N. Y. Supp. 359. 

2 United States.— Hopt v. Utah, 
110 U. S. 587, 28 L. ed. 267, 4 Sup. 
Ct. Rep. 202, 4 Am. Crim. Rep. 
411; Harrold v. Oklahoma, 94 C. 
C. A. 415, 169 Fed. 47, 17 A. & E. 
Ann. Cas. 868; Sorenson v. United 
States, 74 C. C. A. 468, 143 Fed. 
820. 

Alabama. — Meinaka v. State, 55 
Ala. 47; Aliller v. State, 40 Ala. 
58; Banks v. State, 84 Ala. 430, 4 
So. 382; Mc Alpine v. State, 117 Ala. 
93, 23 So. 130; Bradford v. State, 
104 Ala. 68, 53 Am. St. Rep. 24, 
16 So. 107; Campbell v. State, ISO 
Ala. 70, 43 So. 743; Johnson v. 
State, 59 Ala. 37, 3 Am. Crim. Rep. 
256; Curry v. State, 120 Ala. 366, 
25 So. 237; Bonner v. State, 55 
Ala. 242; Jackson v. State, 83 Ala. 
76, 3 So. 847; Gilmore v. State, 126 
Ala. 20, 28 So. 595; State v. Stall- 
ings. 142 Ala. 112, 38 So. 261. 

Arkansas. — Smith v. State, 74 
Ark. 397, 85 S. W. 1123. 

California. — People v. Soto, 49 
Cal. 67 ; People v. Castro, 125 Cal. 
521, 58 Pac. 133. 

Maryland.— /■'Fo^.y V. State, 99 
Md. 30, 57 Atl. 542. 

Georgia. — Eberhart v. State, 47 
Ga. 6aSL 



Louisiana. — State v. Davis, 34 La. 
Ann. 352; State v. Johnson, 30 La. 
Ann. 881. 

Mississippi. — Ellis v. State, 65 
Miss. 44, 7 Am. St. Rep. 634, 3 So. 
188; Peter v. State, 4 Smedes & 
M. 31 ; Williams v. State, 72 Miss. 
117, 16 So. 296. 

New Jersey. — State v. Young, 67 
N. J. L. 223, 51 Atl. 939. 

Oregon. — State v. Wintzingerode, 
9 Or. 153. 

South Dakota. — State v. Allison, 
— S. D. — , 124 N. W. 747. 

Texas. — Walker v. State, 7 Tex. 
App. 245, 32 Am. Rep. 595; Greer 
V. State, 31 Tex. 129; Cain v. State, 
18 Tex. 390. 

Virginia. — Thompson v. Com. 20 
Gratt. 731. 

England. — Rex v. Thompson, 1 
Leach, C. L. 338; Reg. v. Warring- 
Jiam, 2 Den. C. C. 447, note, 15 
Jur. 318; Reg. v. Thompson [1893] 
2 Q. B. 12, 18, 62 L. J. Mag. Cas. 
N. S. 93, 5 Reports, 392, 69 L. T. 
N. S. 22, 41 Week. Rep. 525, 17 
Cox, C. C. 641, 57 J. P. 312. 

In a few states confessions are 
regarded as prima facie admissible, 
and the accused is required to show 
that improper inducement existed. 
Hank V. State, 148 Ind. 238, 46 N. 
E. 127, 47 N. E. 465; State v. 
Grover, 96 Me. 363, 52 Atl. 757. 
12 Am. Crim. Rep. 128; Com. v. 
Sego, 125 Mass. 213 ; Com. v. 
Culver, 126 Mass. 464, 3 Am. Crim. 



622 j] 



CONFESSIONS. 



1297 



the same time, in determining the question of admissibility, 
the judge ought to hear the evidence of the accused upon the 
issue of the voluntary character^ of the confession, as the 
accused is alw^ays entitled to prove the facts and circumstances 
under which it was made,* and the proper time to do this is 
Avhen the confession testimony is being heard by the judge. 

Oral confessions may be proved by anyone by whom they 
were heard, the same as any other fact; ^ where the confession 



Rep. 81 ; Rufcr v. State, 25 Ohio St. 
469. 

3 Com. V. Culver, 126 Mass. 464, 
3 Am. Crim. Rep. 81 ; People v. 
Fox, 121 N. Y. 449, 24 N. E. 923 ; 
Zuckerman v. People, 213 111. 114, 
72 N. E. 741. 

* England. — Rex v. Clewes, 4 Car. 
& P. 221. 

Alabama. — Spence v. State, 17 
Ala. 192; Williams v. State, 103 
Ala. 2Z, 15 So. 662; Jackson v. 
State, 83 Ala. 76, 3 So. 847. 

California. — People v. Soto, 49 
Cal. 67; People v. Miller, 135 Cal. 
69. 67 Pac. 12, 12 Am. Crim. Rep. 
183. 

Georgia. — Adams v. State, 129 
Ga. 248, 17 L.R.A.(N.S.) 468, 38 
S. E. 822, 12 A. & E. Ann. Cas. 158. 

Indiana. — Palmer v. State, 136 
Ind. 393, 36 N. E. 130. 

Illinois. — Zuckerman v. People, 
213 111. 114, 72 N. E. 741. 

Iowa. — State v. Fidment, 35 
Iowa, 541. 

Louisiana. — State v. Platte, 34 
La. Ann. 1061; State v. Miller, 42 
La. Ann. 1186, 21 Am. St. Rep. 418, 
8 So. 309. 

Massachusetts. — Com v. Culver, 
126 Mass. 464, 3 Am. Crim. Rep. 
81. 

Crim. Ev. Vol. II.— 82. 



Mississippi. — Serpentine v. State, 
1 How. (Miss.) 256. 

Missouri. — State v. Rush, 95 Mo. 
199, 8 S. W. 221 ; State v. Kinder, 
96 Mo. 548, 10 S. W. 77; State v. 
Brooks, 220 Mo. 74, 119 S. W. 353. 

Nebraskn.— Willis v. State, 43 
Neb. 102, 61 N. W. 254. 

New Jersey. — State v. Hill, 65 N. 
J. L. 626, 47 Atl. 814, 12 Am. Crim. 
Rep. 191 ; State v. Young, 67 N. J. 
L. 223, 51 Atl. 939. 

Nevada. — State v. Williams, 31 
Nev. 360, 102 Pac. 974. 

New York. — People v. Fox, SO 
Hun. 604, 20 N. Y. S. R. 316, 3 N. 
Y. Supp. 359. 

Ohio. — Lefevrc v. State, 50 Ohio 
St. 584, 35 N. E. 52; Rufer v. State. 
25 Ohio St. 464. 

Pennsylvania. — Com. v. Van 
Horn, 188 Pa. 143, 41 Atl. 469. 

Tennessee. — Maples v. State, i 
Heisk. 408. 

Utah. —State v. Wells, 35 Utah. 
400, 136 Am. St. Rep. 1059, lOt 
Pac. 681, 19 A. & E. Ann. Cas. 631 

^Alston V. State, 41 Tex. 39i 
State V. Gossett, 9 Rich. L. 428; 
Coffman v. Com. 10 Bush, 495, i 
Am. Crim. Rep. 293 ; Clough v 
State, 7 Neb. 320; Stevens v. Stat.r 
— Tex. Crim. Rep. — , 38 S. W 



1298 



EVIDENCE IN CRIMINAL CASES. [CHAP XIV. 



is in writing it must be proved by the production of the writ- 
ing, with proof of its execution, as in other cases of docu- 
mentary evidence.^ When the confession is taken in writing 
before a magistrate, it may be proved by parol testimony, upon 
proper proof of the loss of the writing.' Where the confes- 
sion is written down by another, and signed by accused, he 



167; State v. Schmidt, 136 Mo. 644, 
38 S. W. 719; People v. Cokahnour, 
120 Cal. 253, 52 Pac. 505; Com. v. 
Epps, 193 Pa. 512, 44 Atl. 570, 12 
Am. Crim. Rep. 185 ; State v. Green, 
48 .S. C. 138, 26 S. E. 234; Com. v. 
Storti, Ml Mass. 339, 58 N. E. 
1021. 

A verified transcript of a confes- 
sion taken in shorthand is admis- 
sible. See Lowe v. State, 125 Ga. 
55, 53 S. E. 1038. 

••United States. — United States 
V. Williams, 103 Fed. 938. 

Alabama. — Bracken v. State, 111 
Ala. 68, 56 Am. St. Rep. 23, 20 So. 
636. 

California. — People v. Martinez, 
66 Cal. 278, 5 Pac. 261; People v. 
Cokahnour, 120 Cal. 253, 52 Pac. 
505; People v. Silvers, 6 Cal. App. 
69, 92 Pac. 506. 

Delaware. — State v. Vincent, 
Houst. Crim. Rep. (Del.) 11. 

Iowa. — See State v. Usher, 126 
Iowa, 287. 102 N. W. 101 ; State v. 
Busse. 127 Iowa, 318, 100 N. W. 
536. 

Illinois. — See Wistrand v. People, 
218 111. 323, 75 N. E. 891. 

Louisiana. — State v. Demarest;, 
41 La. Ann. 617, 6 So. 136. 

Massachusetts. — Com. v. King, 8 
Gray, 501. 

Mississippi. — Peter v. State, 4 
Smedes & M. 31; Hightower v. 



State, 58 Miss. 636; Wright v. 
State, 50 Miss. 332, 1 Am. Crim. 
Rep. 191 ; Powell v. State, — Miss. 
— , 23 So. 266; Wright v. State, S2 
Miss. 421, 34 So. 4 (contra). 

South Carolina. — State v. Bran- 
ham, 13 S. C. 389. 

Texas. — Ltiera v. State, — Tex. 
Crim. Rep. — 32 S. W. 898 ; Hurst 
V. State, — Tex. Crim. Rep. — , 40 
S. W. 264; Williams v. State, 38 
Tex. Crim. Rep. 128, 41 S. W. 645 ; 
Powell V. State, 37 Tex. 348; Bre:: 
V. State, 39 Tex. 95; Grimsinger v. 
State, 44 Tex. Crim. Rep. 1. 69 S. 
W. 583 ; Knuckles v. State, 55 Tex. 
Crim. Rep. 6, 114 S. W. 825; Cal- 
lozi'ay V. State, 55 Tex. Crim. Rep. 
262, 116 S. W. 575. See Askew v. 
State. — Tex. Crim. Rep. — , 127 
S. W. 1037. 

"^ Peter v. State, 4 Smedes & M. 
31 ; Guy v. State, 9 Tex. App. 161 ; 
Hightower v. State, 58 Miss. 636; 
Patton V. Freeman, 1 N. J. L. 114; 
State V. Matthews, 66 N. C. 106; 
State V. Vincent, Houst. Crim. Rep. 
(Del.) 11; Wright v. State, 50 
Miss. 332, 1 Am. Crim. Rep. 191; 
Williams v. State, 38 Tex. Crim. 
Rep. 128, 41 S. W. 645; Powell v. 
State, — Miss. — , 23 So. 266; Peo- 
ple V. Cokahnour, 120 Cal. 253, 52 
Pac. 505 ; State v. Harman, 3 Harr. 
(Del.) 567. 



§ 622 j] 



CONFESSIONS. 



1299 



adopts the language as his own,® but it must be written by 
him or signed by him to make it his confession.^ The exact 
words of the confession need not be proved, but the substance 
must be given, ^° and the alleged confession must be offered 
in its entirety, including all that was said relating to the fact 
in dispute ; ^^ and the accused, at the same time, may prove, 



^Com. V. Coy, 157 Mass. 200, 32 
N. E. 4. See State v. Brown, 1 Mcl 
App. 86. 

^ Austine v. People, 51 111. 236; 
State V. Hannati, 3 Harr. (Del.) 
567. 

^° State V. Hopkirk, 84 Mo. 278; 
State V. Madison, 47 La. Ann. 30, 
16 So. 566; State v. Desroches, 48 
La. Ann. 428, 19 So. 250; Brister 
V. State, 26 Ala. 107; Fertig v. 
State, 100 Wis. 301, 75 N. W. 960, 
Green v. Com. 26 Ky. L. Rep. 1221, 
83 S. W. 638; Green v. State, 96 
Md. 384, 54 Atl. 104, 12 Am. Crim. 
Rep. 149; State v. Berberick. 2S 
Mont. 423, 100 Pac. 209, 16 A. & E. 
Ann. Cas. 1077 ; State v. Lu Sing, 
34 Mont. 31, 85 Pac. 521, 9 A. & E. 
Ann. Cas. 344; People v. Giro, 197 
N. Y. 152, 90 N. E. 432. 

11 England. — Rex v. Clewes, 4 
Car. & P. 221; Rex v. Hearnc, 4 
Car. & P. 215. 

Florida. — Daniels v. State, 57 Fla. 
1, 48 So. 747. 

United States. — United States v. 
Prior, 5 Cranch, C. C. 37, Fed. Cas. 
No. 16,092; United States v. Lo7ig, 
30 Fed. 678; United States v. Smith. 
Fed. Cas. No. 16,342a. 

Alabama. — William v. State, 39 
Ala. 532; Levison v. State, 54 Als. 
520; Strickland v. State, 151 Ala. 
31, 44 So. 90. 

Arkansas. — Frazicr v. State, 42 



Ark. 70; Williams v. State, 69 Ark. 
599, 65 S. W. 103. 12 Am. Crim 
Rep. 110. 

California. — People v. Gelabert, 
39 Cal. 663 ; People v. Navis. 3 Cal. 
106. 

Delaware. — State v. Smith, 9 
Houst. (Del.) 588, 33 Atl. 441; 
State V. Miller, 9 Houst. (Del.) 564, 
32 Atl. 137. 

Georgia. — Woolfolk v. State, 85 
Ga. 69, 11 S. E. 814; Wall v. State, 
5 Ga. App. 305, 63 S. E. 27. 

Illinois.— rFa//^r v. People, 175 
111. 221, 51 N. E. 900; Burnett v. 
People, 204 111. 208, 66 L.R.A. 304, 
98 Am. St. Rep. 206, 68 N. E. 505. 

Iowa. — State v. Novak, 109 Iowa, 
717, 79 N. W. 465; State v. Neu- 
bauer, 145 Iowa, Z2>7, 124 N. W. 312. 

Kansas. — State v. Sorter, 52 Kan. 
531, 34 Pac. 1036. 

Kentucky. — Hart v. Com. 22 Ky. 
L. Rep. 1183, 60 S. W. 298; H err oh 
V. Com. 23 Ky. L. Rep. 782, 64 S. 
W. 432. 

Louisiana. — State v. Johnson, 47 
La. Ann. 1225, 17 So. 789. 

Mississippi. — Coon v. State, 13 
Smedes & M. 246; McCann v. State, 
13 Smedes & M. 471. 

Missouri. — State v. Hollenscheit, 
61 Mo. 302; State v. McKenzie, 144 
Mo. 40. 45 S. W. 1117; State v. 
Coats, 174 Mo. 396, 74 S. W. 864 : 



1300 



EVIDENCE IN CRIMINAL CASES. [CHAP XIV. 



ill explanation, the whole of what was said that may tend to 
modify or refute the confession. ^^ 

§ 622k. Burden of proof; presumptions. — While the 
great weight of authority is that the prosecution offering the 
confession must show that it was voluntarily made, neverthe- 
less a number of courts regard a confession as prima facie 
admissible, or, in other words, indulge the presumption that 
confessions are prima facie voluntary. This appears to be 
the ruling in Indiana,^ Maine,^ Michigan,^ Missouri,* Ohio,^ 



State V. Myers, 198 Mo. 225, 94 S. 
W. 242. 

Nebraska. — Walrath v. State, 8 
Neb. 80. 

Nevada. — State v. Buster, 23 Ne\. 
346. 47 Pac. 194. 

New Yovk.— People v. Rulloff, 3 
Park. Crim. Rep. 401 ; People v. 
' wmis, 76 App. Div. 243. 78 N. Y. 
Supp. 578. 

Ohio.— State v. Knapp, 70 Ohio 
St. 380. 71 N. E. 705, 1 A. & R. 
Ann. Cas. 819. 

Texas. — Powell v. State, 37 Tex 
348; Riley v. State, 4 Tex. App. 
538; McKinney v. State, 48 Tex. 
Crim. Rep. 402. 88 S. W. 1012; Fol- 
lis V. State, 51 Tex. Crim. Rep. 
186. 101 S. W. 242. 

Vermont. — State v. McDonnell, 
32. Vl 491. 

Virginia. — Brown v. Com. 9 
Leigh. 633. 33 Am. Dec. 263. 

Wisconsin. — Fertig v. State, 100 
Wis. 301. 75 N. W. 960; Emerv v. 
State. 92 Wis. 146. 65 N. W. 848; 
Rounds V. Stale, 57 Wis. 45, 14 N. 
W. 865. 

^^ Chambers v. State. 26 Ala. 59; 
Parke v. State, 48 Ala. 266 ; People 
V. Vcaton, 75 Cal. 415. 17 Pac. 544; 
Woolfolk V. State, 85 Ga. 69. 11 S. 



E. 814; Daniels v. State, 78 Ga. 98, 
6 Am. St. Rep. 238; Diehl v. State, 
157 Ind. 549, 62 N. E. 51 ; Coffman 
V. Com. 10 Bush, 495, 1 Am. Crim. 
Rep. 293; Berry v. Com. 10 Bush, 
15, 1 Am. Crim. Rep. 272; Hart v. 
Com. 22 Ky. L. Rep. 1183, 60 S. W. 
298; Herron v. Com. 23 Ky. L. Rep. 
782, 64 S. W. 432; State v. Johnson. 
47 La. Ann. 1225, 17 So. 789; State 
V. McKensie, 144 Mo. 40, 45 S. W. 
1117; State v. Buster, 23 Nev. 346, 
47 Pac. 194; Jones v. State, 13 Tex. 
168, 62 Am. Dec. 550. 

^ Brown v. State, 71 Ind. 470; 
Hauk V. State, 148 Ind. 238, 46 N. 
E. 127, 47 N. E. 465; Thurman v. 
State, 169 Ind. 240, 82 N. E. 64; 
State V. Laughlin. 171 Ind. 66, 84 
N. E. 756. 

2 State V. Grover, 96 Me. 363, 52 
Atl. 757, 12 Am. Crim. Rep. 128; 
State V. Bowe. 61 Me. 171. 

3 People V. Barker, 60 Mich. 279, 
1 Am. St. Rep. 501, 27 N. W. 539. 

^ State V. Patterson, 73 Mo. 695; 
State V. Spaugh. 200 Mo. 571. 98 S. 
W. 55 ; State v. Armstrong, 203 Mo. 
554, 102 S. W. 503; State v. Jones. 
171 Mo. 401. 94 Am. St. Rep. 786. 
71 S. \\'. 680. 

^Riifer V. State, 25 Ohio St. 464. 



§ 622k] CONFESSIONS. 1301 

Massachusetts,^ and North Carolina^ It is difficult to deter- 
mine from these rulings whether or not the trial judge can 
properly indulge the presumption in favor of the voluntary 
character of the confession. If these rulings mean that the 
confession is to be taken as prima facie voluntary, then the 
burden of proof, to show that no improper inducement ex- 
isted, is upon the accused. This, then, would modify the 
general rule that the burden is on the prosecution to show the 
voluntary character of the confession. In Ohio it is stated 
in terms, ''Confessions are presumed to be voluntary until 
the contrary is shown," * and, under such a ruling, the burden 
of showing the alleged improper inducement falls upon the ac- 
cused. In Massachusetts the court says that in the absence of 
all evidence the presumption is that a confession is voluntary.^ 
This ruling would seem to indicate that in Massachusetts pre- 
liminary evidence of the voluntary character of the confes- 
sion is not required. In North Carolina it is said that the 
confession is to be taken as prima facie voluntary, and ad- 
missible in evidence, unless the accused alleges and shows 
facts authorizing a legal inference to the contrary.^" If a 
rule can be deduced from these decisions, it is that no show- 
ing is required on the part of the state, until evidence appears 
of, or the accused proves, an alleged inducement. In Alabama, 
however, all confessions are presumed to be involuntary, and 
in that state proof of their voluntary character falls upon 
the prosecution.^^ In Maryland it is held that the rule is 
well settled that the burden is upon the prosecution to show 

6 Com. V. Culver, 126 Mass. 464, 3 " Redd v. State, 69 Ala. 255 ; 

Am. Crim. Rep. 81. Banks v. State, 84 Ala. 430, 4 .So. 

''State V. Sanders, 84 N. C. 728. 382; Bradford v. State, 104 Ala. 68, 

« Rufer V. State, 25 Ohio St. 464. 53 Am. St. Rep. 24, 16 So. 107 ; 

^Com. V. Culver, 126 Mass. 464, State v. Stallings, 142 Ala. 112, 38 

3 Am. Crim. Rep. 81 ; Com. v. Sego, So. 261 ; Campbell v. State, 150 Ala. 

125 Mass. 210. 70, 43 So. 743. 

10 State V. Sanders, 84 N. C. 72a 



1302 EVIDENCE IN CRIMINAL CASES. [CHAP XIV. 

affirmatively that the confession proposed was free from any 
improper inducement,^^ and in Louisiana the prosecution must 
affirmatively show that the confession is voluntary," these rul- 
ings declaring in terms the prevailing rule. 

Under the fundamental principle of criminal law, that the 
burden of proof is upon the state to establish the guilt of the 
accused beyond a reasonable doubt, confession evidence, being 
in the nature of self -crimination, offered by the state, its volun- 
tary character should be first affirmatively shown, and the ex- 
ception, by way of presumption, cannot prevail. 

§ 6221. Discretion of judge; quantum of proof. — Under 
the general rule recognized by a preponderating weight of 
authority, the trial judge determines the cjuestion of the char- 
acter of the confession. The question is, of course, one of 
mixed law and fact, and when applied to confessions does not 
differ from other questions of mixed law and fact which a 
trial judge is constantly called upon to decide. No rule can be 
formulated that would comprehend the cases, for each case 
rests upon a state of facts which does not exist in any other 
particular case. There is no precise formula of words ad- 
dressed to an accused by any other person that would exclude 
the confession, and no precise formula of words addressed to 
the accused by any person that could give a voluntary char- 
acter to the confession. All that can be said, then, is that the 
presiding judge, aided by his legal learning and experience 
upon the bench, must determine for himself the weight of the 
circumstance that admits or excludes the confession in a con- 
crete case.^ 



^^ Nicholson V. State. 38 Md. 140. L. ed. 568, 18 Sup. Ct. Rep. 183. 10 

13 State V. Johnson, 30 La. Ann. Am. Crim. Rep. 547 ; State v. IVorlc- 

881. man, 15 S. C. 540; State v. Houston, 

^ State V. Branham, 13 S. C. 389; 76 N. C. 256; Com. v. Tuckermau, 

Com. V. Morey, 1 Gray, 461; Bram 10 Gray, 173; Laughlin v. Com. IS 

V. United States, 168 U. S. 533, 42 Ky. L. Rep. 640, Z7 S. W, 590; 



§ 6221] 



CONFESSIONS. 



1303 



While the final effect of the exercise of this discretion is 
a question that concerns appellate procedure rather than evi- 
dence, nevertheless there ought to be accorded to the finding 
of the trial judge a conclusive effect, measured, as in other 
cases, by the following principles : 

First, where there is a conflict of evidence, the ruling of 
the trial court should be final on the question of admissibility.^ 

Second, where there is no conflict in the evidence, and the 
question presented is what constitutes an improper induce- 
ment, it is a question of law, subject to review.^ 

The general rule, then, as to the exercise of the court's dis- 
cretion, upon the question of the admissibility of confession 
evidence, is that the finding as to facts is final, and not sub- 
ject to review except in a case of mistake or abuse of discre- 
tion, but the finding on the question of law is always open to 
review in the appellate court. The various phases of these 
rulings will be found in the following cases.* 



Johnson v. State, 1 Ga. App. 129, 
57 S. E. 934; Hopt v. Utah. 110 U. 
S. 574, 28 L. ed. 262, 4 Sup. Ct. 
Rep. 202, 4 Am. Crim. Rep. 417; 
United States v. Nott, 1 McLean, 
499, Fed. Cas. No. 15,900; State v. 
Vey, 21 S. D. 612, 114 N. W. 719; 
State V. Landers, 21 S. D. 606, 114 
N. W. 717; Nicholson v. State, 38 
Md. 140; Com. v. Sheets, 197 Pa. 
69, 46 Atl. 753; Com. v. Phillips, 
26 Ky. L. Rep. 543, 82 S. W. 286; 
Cady V. State, 44 Mi.ss. 332; Banks 
V. State, 93 Miss. 700, 47 So. 437. 

^ Fincher v. People, 26 Colo. 169, 
56 Pac. 902; State v. Gorham, 67 
Vt. 365, 31 Atl. 845, 10 Am. Crim. 
Rep. 25. See State v. Monich, 74 
N. J. L. 522, 64 Atl. 1016. 

estate V. Vann. 82 N. C. 632; 
Holland v. State, 39 Fla. 178, 22 So. 



298. See Hints v. State, 125 Wis. 
405, 104 N. W. 1 10 ; Roscccyniala v. 
State, 125 Wis. 414, 104 N."w. 113. 
^Runnels v. State, 28 Ark. 121; 
Williams v. State, 63 .\rk. 527, 39 
S. W. 709; State v. IVillis, 71 Conn. 
293, 41 Atl. 820; State v. Cross, 72 
Conn. 722, 46 Atl. 148, 12 Am. Crim. 
Rep. 175; Hardy v. United States. 
3 App. D. C. 35, 46; Travers v. 
United States, 6 App. D. C. 450; 
Bartley v. People, 156 111. 234, 40 
N. E. 831; State v. Storms. 113 
Iowa, 385, 86 Am. St. Rep. 380, 85 
N. W. 610; State v. Edzvards, 106 
La. 674, 31 So. 308; State v. Grover. 
96 Me. 363, 52 Atl. 757, 12 Am. 
Crim. Rep. 128; Roesel v. State, 62 
N. J. L. 216, 41 Atl. 408; State v. 
Davis. 63 N. C 580; State v. Page. 
127 N. C. 512, 37 S. E. 66; Fife v. 



1304 EVIDENCE IN CRIMINAL CASES. [CHAP XIV. 

§ 623. Confessions, strictly speaking, are not evi- 
dence. — It must be observed that an extrajudicial confes- 
sion is an acknowledgment of guilt by the accused, and in 
itself is the statement of a fact. It is not proof that a par- 
ticular thing took place, nor is it a waiver, by the accused, of 
his legal right to have the fact technically proved. A, for 
instance, is shown to have said that certain facts, implicating 
him, actually occurred. If this statement was offered as evi- 
dence of such facts, it is purely hearsay and inadmissible. It 
is not the less hearsay because A accuses himself, because in 
the extrajudicial confession you cannot dispense with the 
proof. If a reason must be assigned for the admission of 
hearsay testimony, it finds its basis in the rule that admissions 
against interest constitute a well-recognized exception to the 
rule. 

§ 624. A confession must relate to past or present con- 
ditions. — A confession, to have the effect of conceding, 
either wholly or prima facie, the case of the prosecution, must 
relate to a past or present state of facts. If I say, "I did a 
particular thing," this may be treated as a confession. If I 
say, "I will do this thing in the future," this is not a confes- 
sion, unless, with other evidence, it implies a past or present 
act. Relevancy to past or existing conditions is, therefore, 
an essential requisite of the admissibility of a confession.^ 

§ 625. Extrajudicial confessions prima facie proof 
only. — An extrajudicial confession forms but a prima facie 
case against the party by whom it is made.^ Such confessions 

Com. 29 Pa. 437; State v. Derrick. 601, 78 Pac. 987, 81 Pac. 234, 2 A. 
44 S. C. 344, 22 S. E. 338; State v. & E. Ann. Cas. 431. 



1 State V. Cox, 65 Mo. 29. 
1 Mascard. i. C. No. 26; Ende 
Connors v. State, 95 Wis. 77, 69 N. „,3„„^ 137^ g^e Wharton, Ev. § 



Cannon, 49 S. C. 550. 27 S. E. 526; 
Connors v. State, 95 Wis. 77, 69 N. 
W. 981; State v. Rogo-juay, 45 Or. 107 



§ 626] CONFESSIONS. 1305 

are not conclusive proof of that which they state ;^ it may be 
proved that they were uttered in ignorance, or levity, or 
mistake ; ' and hence they are, at the best, to be regarded as 
only cumulative proof, which affords but a precarious support, 
and on which, when uncorroborated, a verdict cannot be per- 
mitted to rest. This is eminently the case where there is any 
suspicion from the nature of things attachable to the confes- 
sion, as is the case with admissions of adultery ; * or where 
the party against whom it is offered made it under a mistake of 
fact.^ Whenever such a mistake is proved, the confession is 
to be disregarded.^ And the same rule applies to an admission 
of an act technically void. Thus on an indictment for setting 
fire to a ship, it was held that the prosecutor could not make 
use of an admission by the prisoner that certain persons were 
owners, if it appeared that the requisites of the shipping act 
had not been complied with.''' It has also been held that an 
admission of a marriage, which turned out to be void, cannot 
be used against a defendant charged with bigamy.^ 

§ 626. Intention a necessary basis to a confession. — 

Extrajudicial confessions may be adduced, either as admis- 

2 See State v. Broivn, 1 Mo. App. B. N. S. 53, 13 Jur. 253, 6 Eng. Ry. 
86 : Ray v. State, 50 Ala. 104. & C. Cas. 38 ; Newton v. Liddiard, 

3 Post, §§ 634-636. 12 Q. B. 927, 18 L. J. Q. B. N. S. 
*Post, § 637; Lyon v. Lyon, 62 53, 6 Eng. Ry. & C. Cas. 42; Atty.- 

Barb. 138; Prince v. Prince, 25 N. Gen. v. Stephens, 1 Kay & J. 748, 3 

J. Eq. 310; Evans v. Evans, 41 Cal. Eq. Rep. 1072, 24 L. J. Ch. N. S. 

103; Mathews v. Mathezvs, 41 Tex. 694, 1 Jur. N. S. 1039, 3 Week. Rep. 

331. 649; Hall v. Huse, 10 Mass. 39; 

5 Sec People v. Velarde, 59 Cal. State v. Welch, 7 Port. (Ala.) 463 ; 

457. State v. Brown, 1 Mo. App. 86. 

^ See cases cited post, § 634. See, however, Blackburn v. Com. 

Compare Wheeling's Case, 1 Leach, 12 Bush, 181. 

C. L. 311. note; Heane v. Rogers, ^ Rex v. Philp, 1 Moody, C. C. 

9 Barn. & C. 577, 4 Mann. & R. 271. 

486, 7 L. J. K. B. 285; Newton v. 8 3 Starkie, Ev. 1187. 
Belcher, 12 Q. B. 921, 18 L. J. Q. 



1306 EVIDENCE IN CRIMINAL CASES. [CHAP XIV. 

sions of guilt, or as admissions of isolated facts from which 
guilt may be inferred. When offered for the former purpose, 
they have no weight unless they were made intentionally and 
in sincerity;^ and hence it is admissible, in order to impugn 
a confession, to show that it was made as a joke. We must 
also remember that an alleged confession may have been only a 
brag, understood by the parties to be such at the time,^ or may 
have been uttered in order to make a sensation. If so, it 
cannot be made the basis on which a conviction can be sus- 
tained, since on its face its want of truthfulness appears. To 
the credibility of a confession of guilt, therefore, it is neces- 
sary that there should be an auiiiius confitendi, or intention 
to speak the truth as to the specific charge of guilt. Such in- 
tention, however, is not essential to attach credibility to ad- 
missions of particular facts, in themselves indifferent, but 
which go to make up a case on which guilt is assumed to 
rest.' It is a part of the case against a defendant, for instance, 
that he rode a specific distance in a given time. It is admis- 
sible to put in evidence against him his admissions that on 
other occasions his horse had a speed which, it might after- 
wards have been urged, would have enabled him to make the 
time in question. And it is not necessary to the admissil)ility 
of such statements that it should be proved that they were 
made with any particular intention.* In fact, the more un- 
designed and fortuitous they appear to have been, the more 
likely they are to be true.* Hence we may conclude that de- 
signedness is one of the conditions of the credibility of a 

^Roy V. State. 50 Ala. 104, ^ Fraser v. State, 55 Ga. 325, 1 

2 See Hamilton v. Reg. 9 Q. B. Am. Crim. Rep. 315; 5/a/c v. Lnt'u-. 

270, 16 L. J. Mag. Cas. N. S. 9, 10 45 Iowa, 20. 

Jur. 1028, 2 Cox, C. C 11; State ^Fraser v. State. 55 Ga. 325, 1 

V. Estes, 46 Me. 150; People v. Am. Grim. Rep. 315; supra, § 625. 

Crissie, 4 Denio. 525; State v. ^ Linnchan w Sampson. \26 Mtlss.. 

Phifer, 65 N. C. 321. See post, 506, 30 Am. Rep. 692; Ettingcr v. 

§ 627. Com. 98 Pa. 338. 



§ 627] CONFESSIONS. 1307 

confession of the conclusion of guilt; while undesignedness 
enhances the weight of admissions of incidental facts from 
which the conclusion of guilt is drawn. A man cannot he 
convicted of forgery on an inadvertent statement made by 
him, not in response to any particular charge, that he was a 
forger. But his conviction may properly be rested on a series 
of inadvertent acts on his part not meant as confessions; e. g., 
writings or other matters showing an identity of penmanship 
with that of the alleged forgery, and the materials for forgery 
which he may have exposed. 

§ 627. Self-disserving confession of guilt. — The credi- 
bility of a self-disserving confession of guilt, therefore, as 
distinguished from incidental admissions of facts, is a ques- 
tion of fact resting on the presumption that no prudent man 
would declare an untruth to his own disadvantage.^ Quiun 
Icgibus nostris dictum sit, qticcciinqiie qiiis pro se dixcrit ant 
scripserit, ea nihil ipsi prodcssc, neqne creditorihus prccjudi- 
care} Exeniplo perniciosum est, ut ei scriptiircc crcdatur, qua 
unusqiiisque sibi adnotationc propria debitoreui constituit. 
Undo neque fiscum nequc aliurn qiiemlihet ex suis subnota- 
tionibus debiti probationeni prcebere posse oportet} Hence. 
contra se dicer e is essential to constitute a credible confession 
of guilt. Self-love, as it is justly argued, will hinder a prudent 
man from falsehoods that would^ disgrace him.* Yet we must 
remember that this proposition applies mainly to matters of 
pecuniary interest. When we come to questions of pedigree, 
of status, and of marriage, different influences come in which 
render the tests just given of but little weight. In matters of 

1 Com. V. Galligan, 113 Mass. 202 ; 2 Hesse, 29. 

Com. V. Sanborn. 1 16 Mass. 61 ; ^ L. 7, C. 4, 19. 

Blackburn v. Com. 12 Bush, 181 : * Hesse, ut supra, 29, citing fur- 

Eiland v. State, 52 Ala. 322. And ther I. 26, § 2; D. xvi. 3. 
see Brown v. Com. 76 Pa. 319, no- 
ticed post, §§ 629, 650. 



1308 EVIDENCE IN CRIMINAL CASES. [CHAP XIV. 

pedigree, in particular, a statement which one man would 
shrink from as discreditable, another would advance with 
pride. Nor can we forget that pecuniary interest may some- 
times be overbalanced by other more powerful passions. A 
villain may try to make a point by falsely confessing adultery 
with a woman whom he desires to humble ; ^ while a person 
craving notoriety may take satisfaction in intimating his com- 
plicity in merely imaginary crimes.® Even among prudent 
men, a little obvious interest, against which a party makes an 
admission, may be greatly overbalanced by a superior secret 
interest, of which nobody knows but the declarant. The 
truthfulness, therefore, of an apparently self-disserving state- 
ment is a presumption of fact, depending upon all the circum- 
stances of the case. We must inquire w^hether the statement 
was really self-disserving; and even if it were so, in a business 
sense, we must remember that it may be discredited by show- 
ing that it was made under mistake, or from a desire on the 
declarant's part to produce a sensation, or to avoid a disclosure 
of a fact with which the admission is inconsistent. Incidental 
admissions of facts on which the prosecution's case depends 
become the more reliable in proportion to their undesigned- 
ness. But to the credibility of confessions of guilt it is essential 
that they should have been made with a sincere intention of 
telling the truth."' 

§ 628. Theoretically, a confession is deducted; an ad- 
mission inducted. — While to a confession of guilt, inten- 

5 Shillito's Case noticed in 2] cana, bk. 6. chap. 7 ; Governor Hut- 
Alb. L. J. 163, Feb. 28, 1880. chinson's History of Massachusetts. 

^Jcaffreson, Real Lord Byron. vol. 2, pp. IS, 63; 5 State Tr. 

Am. ed. 64. pp. 647, 682; Upham's Lectures on 

' 1 Cockburn's Memorials, pp. 141 the Salem Witchcraft, Boston, 

et seq. ; Angus's Case. Burnett. 1831; Best. Ev. 9th ed. p. 839; N. 

Crim. Law, 575. See 3 Wharton Y. Med. Leg. Soc. (N. Y. 1872, 

«: S. Med. Jur. § 874: Cotton pp. 318-331.) 
blather's Magnalia Christi Ameri- 



§ 629] CONFESSIONS. 1309 

tion pointed to a particular charge is necessary, such is not the 
case with the incidental admission of isolated facts, which de- 
rive their peculiar reliability from their inadvertence. An- 
other distinction is now to be considered. A confession of 
guilt is of no weight unless it is a short-hand admission of 
facts; an admission of an incidental fact is of no weight 
unless it affords a basis for an induction of guilt. The first 
is inoperative unless, as an answer to a particular offense 
charged, it implies a specification which is sufficiently exact to 
sustain a conviction. The second is inoperative unless it is 
supported collaterally by a series of other facts from which 
guilt may be cumulatively inferred. The first is, "I am guilty 
of this," and this implies an admission of all the acts con- 
stituting guilt. The second is, "Such an act, part of a compli- 
cated web of circumstances, is true;" and this involves the 
examination of all other relevant circumstances.^ Relevancy, 
in the first case, is sustained by deductive reasoning: Who- 
soever is guilty of the acts making up the result ; in the second 
case, by inductive reasoning : Whosoever did the component 
acts is guilty of the result. As to the first, we must remember 
that the party confessing may himself have reasoned falsely. 
He may have shot a man already dead, for instance, and may 
therefore, by assuming a false premise, confess a murder 
which he did not commit. As to the second, we must remem- 
ber that we may reason falsely.^ The inculpatory facts ad- 
mitted by the accused may be true, and yet we may be in error 
in supposing they are grounds from which his guilt may be 
rightly inferred.^ 

§ 629. Identification of accused. — A confession may be 
brought specifically home to the party charged with making 

^ See Com. v. Allen. 128 Mas.s. ^ See supra, § 378; post, § 635. 

46, 35 Am. Rep. 356; State v. How- ' See Haynie v. State, 2 Tex. 

ard, 82 N. C. 623. App. 168. 



1310 EVIDENCE IN CRIMINAL CASES. [CHAP XIV. 

it, and, independently of the cases in which parties are induced 
through fear to make statements which are not really their 
own, we may easily conceive of cases of forged confessions, 
or confessions by one man imputed by mistake to another. 
The person alleged to have confessed, therefore, must be 
identified as the party to whom the confession is charged. 
But the identification may be by voice as well as by face. 
Thus, it has been held in Pennsylvania that a prisoner could 
testify to a confession from another prisoner through a soil 
pipe, the identification of the speaker being by the voice alone. ^ 

§ 630. Medium through which the confession is trans- 
mitted. — The imperfection of the medium through which 
an oral confession is transmitted must also be considered in 
\veighing the confession. Aside from the considerations based 
on the infirmity of memory, we must recollect that there are 
influences peculiarly likely to afifect witnesses as to confes- 
sions. Partisan sympathy, preconceived prejudice, the desire 
to detect an offender, especially in cases of heinous crime, are 
apt in such cases to have distinctive force. In any view, we 
must remember that the accuracy of the witness testifying to 
the confession is a question of fact for the jury.^ 

§ 631. General rule as to admissibility. — Subject to the 
qualifications we have just noticed, the rule is firmly estab- 
lished that a free and voluntary confession, either of an of- 
fense as specifically charged, or of a fact from which such 
offense can be inferred, whether made before or after appre- 
hension, and whether in writing or in unwritten words or by 
signs, is admissible w'hen offered against the accused, no 
matter where or to whom it was made.^ 

^ Brown v. Com. 76 Pa. 319; post, "^ Rex v. Lambe, 2 Leach, C L. 

§ 803. 552; 2 Hawk. P. C. chap. 46; Com. 

^ See Com. v. GalUghan, 113 v. Sanborn, 116 Mass. 61 ; State v. 

Mass. 202; supra, § 378. Brown, 48 Iowa, 382; Williams v. 



§ 631a] CONFESSIONS. 1311 

§ 631a. Definition of "voluntary" as applied to con- 
fessions. — While the fundamental principle of exclusion is 
that the confession may be false, and therefore untrustworthy, 
the determination of the nature of the confession is compre- 
hended in the word "voluntary." Having reference now to 
the exact application of the principle of exclusion, it does not 
matter how the confession is obtained if the confession is a 
true one. Thus, if the accused was severely beaten or tortured, 
and he made a confession which was true as a matter of fact, 
such confession would be admissible in evidence. But it is so 
abhorrent to the senses that any person should be made to 
disclose anything, by threats or by punishment, that courts 
proceed solely upon the question of the voluntary character of 
the confession, and assume that confessions which are not vol- 
untary are not true, but are false and hence inadmissible. 

Some criticism has been made of the use of the word "vol- 
untary," ^ claiming that all confessions must be voluntary, be- 
cause it is the voluntary act of the accused that causes him to 
speak. Technically, this is true, in the sense that when the 
convict walked on the scaffold, and that when Queen Mary 
signed her death warrant, it was a voluntary act, because the 
actual physical character of the act was a compliance with the 
meaning of the word "voluntary." It would not, how^ever, 
be claimed that, because of the physical expression of the act 
of speaking, or of the act of walking upon the scaffold, or 
of signing the death warrant, it was a free exercise of the 
wall. Hence, the term "voluntary," as used in the development 
of the law of confessions, means that the accused speaks of 
his free will and accord, without inducement of any kind, 
and with a full and complete knowledge of the nature and 
consequences of the confession, and when the speaking is so 
free from influences affecting the will of the accused, at the 

State, 10 Tex. App. 526 ; Kcnnon v. ^ Wigmore, Ev. § 824. 

State, 11 Tex. App. 356. 



1312 EVIDENCE IN CRIMINAL CASES. [CHAP XIV. 

time the confession was made, that it renders it admissible 
in evidence against him.^ 

§ 632. Admissibility distinguished from sufficiency. — 

The question of the admissibiHty of the confession is to be 
determined by the court/ as any other question of the rele- 
vancy and competency of evidence. The general rule con- 
trolHng admissibiHty is that the confession is free from any 
improper inducement, but the sufficiency of the confession, as 
evidence to sustain the charge, is a question that goes to its 
weight and credibihty, and hence always a question for the 
jury. 2 . 



§ 633. Corpus delicti and corroboration. — The term 
corpus delicti is so invariably associated with homicide only, 
that its existence as a part of the proof of every crime is 
frequently ignored. Hence, in deahng with corroboration of 
confessions, courts use a rather loose phrasing, such as, "there 
should be some proof that a crime has been committed," or 
"there should be some circumstance corroborating or fortify- 
ing the confession,^ which phrases indicate that the corpus 
delicti, "the body of the crime," "the proof of the crime," or 
however else it may be expressed, must be shown by evidence 
independent of the confession. That this is an essential is 
found in the statement of the general rule, that, to warrant a 
conviction upon an extrajudicial confession of the accused, 
there must be independent evidence to establish tlie corpus 

^ State V. Willis, 71 Conn. 293. is voluntary, see 18 L.R,A.(X.S.) 

41 Atl. 820; State v. Lukens, 6 Ohio 76S. 

N. P. 363, 9 Ohio S. & C. P. Deo. i Post, §§ 689, 689a. 

349; State v. Rorie, 74 N. C. 148; 2 Post, § 6S9b. 

State V. Roberts, 12 N. C. (1 Dev. ^ Bcrgan v. Peot^lc, 17 III. 426, 65 

L.) 259. Am. Dec. 672; Matthczvs v. State, 

For note as to when confession 55 Ala. 187, 28 Am. Rep. 698. 



§ 633] 



CONFESSIONS. 



1313 



delicti of the crime,^ and the rule is also expressed in many 
statutory enactments.' 



2 Wills, Circumstantial Ev. § 6 ; 1 
Greenl. Ev. § 316; State v. David- 
son, 30 Vt. 377, 7Z Am. Dec. 312; 
Com. V. McCann, 97 Mass. 580; 
Com. V. Smith, 119 Mass. 305; Peo- 
ple V. Hennessey, 15 Wend. 147; 
People V. Badgley, 16 Wend. 53; 
Ruloff V. People, 18 N. Y. 179 ; s. 
c. 3 Park. Crim. Rep. 401; People 
V. Bennett, 49 N. Y. 137; Com. v. 
F^/f/;, 8 Phila. 608; Com. v. f/a;;-' 
/oh, 3 Brewst. (Pa.) 461; Smith v. 
Cora. 21 Gratt. 809; State v. Long, 
2 N. C. (1 Hayw.) 455; ^faf^ v. 
CoK/a», 29 N. C. (7 Ired. L.) 239; 
Earp V. State, 55 Ga. 136, 1 Am. 
Crim. Rep. 171 ; Daniel v. State, 63 
Ga. 339; Matthews v. 5/af?. 55 Ala. 
187, 28 Am. Rep. 698; Johnson v. 
State, 59 Ala. 37, 3 Am. Crim. Rep. 
256; Keithler v. State, 10 Smedes 
& M. 229; Stringfellow v. State, 26 
Miss. 157, 59 Am. Dec. 247; Jenkins 
V. State, 41 Miss. 582 ; Lee v. 5;af^, 
45 Miss. 114; Heard v. 5fa?^, 59 
Miss. 545; Robinson v. State, 12 
Mo. 592; ^/a;^ v. Scott, 39 Mo. 424; 
^tof^ V. German, 54 Mo. 526, 14 
Am. Rep. 481 ; Dixon v. State, 13 
Fla. 636; Bergen v. People, 17 111. 
426, 65 Am. Dec. 672 ; May v. P^o- 
ple, 92 III. 343 ; South v. F^ro/-/^, 98 
111. 261 ; Williams v. P^o/>/^, 101 111. 
382; People v. Lane, 49 Mich. 340, 
13 N. W. 622; State v. Keeler, 28 
Iowa, 553 ; State v. Knowles, 48 
Iowa, 598; 5'/a/^ v. Laliyer, 4 Minn. 
368, Gil. 277; F^o/)/^ v. Jones, 31 
Cal. 565 ; People v. ^/i //ow, 34 Cal. 
218; People v. Thrall, 50 Cal. 415; 
Hi// V. Stale, 11 Tex. App. 132; 
Crim. Ev. Vol. II.— 83. 



Lovelady v. State, 14 Tex. App. 
546. See Young v. State, 68 Ala. 
569; Territory v. McClin, 1 Mont. 
394; PriVjf v. 5/a/^, 10 Neb. 393, 6 
N. W. 468. See State v. Gtii/d, 10 
N. J. L. 165, 18 Am. Dec. 404 ; State 
V. Carrick, 16 Nev. 120 ; Rice v. 
State, 47 Ala. 38; Moses v. 5"^a/c', 
58 Ala. 117; State v. Kring, 74 Mo. 
612 ; State v. Patterson, 12> Mo. 695 ; 
Cunningham v. Com. 9 Bush. 149; 
i'to/^ V. Grear, 29 Minn. 221, 13 N. 
W. 140; United States v. Bloom- 
gart, 2 Ben. 356, Fed. Cas. No. 
14,612. See Reg. v. Sutcliffe, 4 Cox. 
C. C. 270; 3 Wharton & S. Med. 
Jur. 4th ed. 1884, §§ 776, et seq. ; 
Meisenheimer v. State, 7Z Ark. 407, 
84 S. W. 494; Hubbard v. State, 
77 Ark. 126, 91 S. W. 11; Melton 
V. State, 43 Ark. 367 ; Holsenbake 
V. State, 45 Ga. 43, 56; People v. 
Jones, 31 Cal. 565 ; Roberts v. P<?o- 
/)/^, 11 Colo. 213, 17 Pac. 637; 
Lambright v. State, 34 Fla. 565, 16 
So. 582, 9 Am. Crim. Rep. 383; 
Holland V. State, 39 Fla. 178, 22 So. 
298 ; State v. Aaron, 4 N. J. L. 232, 
7 Am. Dec. 592; State v. G!«7rf, 10 
N. J. L. 163, 18 Am. Dec. 404. See 
United States v. Williams, 1 Cliff. 
5, Fed. Cas. No. 16,707 ; Flower v. 
United States, 53 C. C. A. 271, 116 
Fed. 241 ; Joiner v. State, 119 Ga. 
315, 46 S. E. 412; Owen v. State, 
119 Ga. 304, 46 S. E. 433; Morgan 
V. State, 120 Ga. 499, 48 S. E. 238; 
May V. People, 92 111. 343 ; Johnson 
V. People, 197 111. 48, 64 N, E. 286: 
Griffiths V. State, 163 Ind. 555, 72 
N. E. 563; Leftridge v. United 



1314 



EVIDENCE IN CRIMINAL CASES. [CHAP XIV. 



It has been loosely stated in a large number of cases that 
"the accused may be convicted on his own uncorroborated 
extrajudicial confession, the corpus delicti being proved by 
other evidence." * This is the equivalent of saying that a 
man may be convicted on his own uncorroborated confession, 
which is corroborated by other evidence. What the courts ap- 
parently mean to express is, that A makes an extrajudicial 
confession of a crime; others produce independent proof of 
the fact of the crime having been committed, or the corpus 
delicti of the crime. This independent proof is the corrobora- 
tion, but it is misleading to say that the confession is un- 
corroborated, merely because the proof of the crime is estab- 
lished by independent evidence. 



States. 6 Ind. Terr. 305, 97 S. W. 
1018; State v. Westcott, 130 Iowa, 
1, 104 N. W. 341 ; State v. Dubois, 
54 Iowa, 363. 6 N. W. 578; Cun- 
ningliaiii v. Com. 9 Bush, 149. See 
Patterson v. Com. 86 Ky. 313, 5 S. 
W. 387; Wigginton v. Com. 92 Ky. 
282, 17 S. W. 634. See Dugan v. 
Com. 102 Ky. 241, 43 S. W. 418; 
State V. Knowles, 185 Mo. 141, 83 
S. W. 1083; Blacker v. State. 74 
Neb. 671. 121 Am. St. Rep. 751, 105 
N. W. 302 ; Peot>le v. Deacons, 109 
N. Y. 374. 16 N. E. 676 ; People v. 
White, 176 N. Y. 331, 68 N. E. 630; 
Re Kelly, 28 Nev. 491, 83 Pac. 223 ; 
State V. Marselle, 43 Wash 273, 86 
Ppc. 586 ; State v. Jenkins, 2 Tyler 
(Vt.) Z77; Early v. Com. 86 Va. 
921. 11 S. E. 795; Wolf v. Com. 
30 Gratt. 833. 

For note as to proof of corpus 
delicti for purpose of corroborating 
confes!^ion. see 68 L.R.A. 68. 73. 

8 Ark. Stat. 1894, § 2231; Ga. 



Code, 1895, § 1005; Ind. Rev. Stai. 
1897, § 1893; Iowa Code, 1897. 
§ 5491; Ky. Crim. Code, 1895, 
§ 240 ; Wash. Code & Stat. 1397, § 
6942; Minn. Gen. Stat. 1894, § 5766: 
N. Y. Crim. Code, 1881, § 395 ; Or 
Crim. Code, 1892, § 1368. 

* Mose V. State, 36 Ala. 211 ; Peo- 
ple V. Carlson, 8 Cal. App. 730, 97 
Pac. 827; Brown v. State, 44 Fla 
28, 32 So. 107; Mitchell v. Stat.7. 
45 Fla. 76, 33 So. 1009; Wimherley 
V. State, 105 Ga. 188, 31 S. E. 162; 
Bartley v. People, 156 111. 234, 40 N. 
E. 831 ; State v. Wortman, 78 Kan. 
847, 98 Pac. 217; Dugan v. Com. 
102 Ky. 241, 43 S. W. 418; Com. 
V. Smith, 119 Mass. 305; State v 
Grear, 29 Minn. 221. 13 N. W. 140 ; 
Sam V. State, 33 iMiss. 347; Spears 
V. State. 92 Miss. 613. 16 L.R.A 
(N.S.) 285, 46 So. 166; State v. 
Patterson, 7Z Mo. 695; Sullivan v. 
State, 58 Neb. 796. 79 N. W. 721; 
Williams v. State, 12 Lea, 211. 



§ 634] CONFESSIONS. 1315 

§ 634. Sufficiency of corroboration. — The sufficiency of 
a corroboration of a confession must depend on the circum- 
stances of each case, always having in view, however, that the 
essentials of the crime must be established beyond a reason- 
able doubt.^ In a trial in Mississippi the circumstances at- 
tending the death of the deceased, and the condition of the 
body, indicated poisoning by stramonium, which is obtained 
from the jimson weed; but the same symptoms are caused by 
congestion of the brain, stomach, or heart, and it was prop- 
erly held by the court that a confession of the accused that he 
had given the deceased jimson weed was not sufficient to 
warrant a conviction, the corpus delicti not being fully proved.^ 
Here, it seems that two causes might intervene to produce 
the same effect, — one, congestion, the other poison, — and, in 
the absence of direct proof, a reasonable doubt existed. On 
the other hand, a boy of fourteen was on trial for the murder 
of a girl nine years old. He confessed that he whipped her 
for telling a lie on him; that the whipping took place near a 
spring; that when she cursed him he got a rail and knocked 
her on the head. The body was found near the spring, with 
the skull fractured, and nearby were the switches and a broken 
rail stained with blood. It was held that these facts sufficiently 
corroborated the confession and warranted the conviction.^ In 
the latter case it was beyond the range of probability that two 
causes could have intervened to produce the same effect, so 
that no reasonable doubt could exist of the truth of the con- 
fession, after finding the body in the place, under the condi- 
tions, and with the weapons used. 

The following cases illustrate the various rulings as to the 
quantum of proof to corroborate the confession.* As to the 

^Gray v. Com. 101 Pa. 380, 47 * White v. State, 49 Ala. 344; 

Am. Rep. 733. Ryan v. State, 100 Ala. 94, 14 So. 

^ Pitts V. State. 43 Miss. 472. 868; Peof^le v. Jones, 123 Cal. 65, 

^Faul V. State, 65 Ga. 152. 55 Pac. 698; Simon v. State. 5 Fla. 



1316 



EVIDENCE IN CRIMINAL CASES. [CHAP XIV, 



corpus delicti, the evidence need not be direct, but it may be 
established by circumstances corroborating the confession,^ and 
the confession itself m.ay be considered, together with all the 
other evidence, to establish the fact that a crime was com- 
mitted.® 



285; Johnson v. State, 86 Ga. 90, 
12 S. E. 471, 13 S. E. 282; West- 
brook V. State, 91 Ga. 11, 16 S. E. 
100; Bergen v. People, 17 III. 426, 
65 Am. Dec. 672; Gore v. People, 
162 111. 259, 44 N. E. 500; State v. 
Dooley, 89 Iowa, 584, 57 N. W. 414 ; 
Wigginton v. Com. 92 Ky. 282, 17 
S. W. 634; Greenwade v. Com. 11 
Ky. L. Rep. 340, 12 S. W. 131; 
State V. New, 22 Minn. 76; Heard 
V. State, 59 Miss. 545; State v. 
Meyers, 99 Mo. 107, 12 S. W. 516; 
Territory v. Farrell, 6 Mont. 12, 9 
Pac. 536; Sullivan v. State, 58 Neb. 
796, 79 N. W. 721 ; State v. Guild. 
10 N. J. L. 163, 18 Am. Dec. 404; 
Gahagan v. People, 1 Park. Grim. 
Rep. 378 ; People v. Rulloff, 3 Park. 
Grim. Rep. 401 ; Com. v. Shaffer, 
178 Fa. 409, 35 Atl. 924; State v. 
Jacobs, 21 R. I. 259, 43 Atl. 31; 
Williams v. State, 12 Lea, 211; 
Fields V. State, 41 Tex. 25 ; Tidwell 
V. State. 40 Tex. Grim. Rep. 38, 47 
S. W. 466, 48 S. W. 184; State v. 
Jenkins, 2 Tyler (Vt.) 377; Hen- 
derson V. Com. 98 Va. 794. 34 S. E. 
881 ; Laughlin v. Com. 18 Ky. L. 
Rep. 640, 37 S. W. 590; Davis v. 
State, 105 Ga. 808, 32 S. E. 158. 

5 Roberts v. People, 11 Golo. 213, 
17 Pac. b37 ; Davis v. State, 141 Ala. 
62, 37 So. 676; Holland v. State, 39 
Fla. 178, 22 So. 298 ; Meisenheimer 
V. State, 73 Ark. 407. 84 S W. 494 ; 
State V. Minor, 106 Iowa, 642, 77 N. 



W. 330; Sanders v. State, 118 Ga. 
329, 45 S. E. 365 ; Laughlin v. Com. 
18 Ky. L. Rep. 640, 37 S. W. 590; 
State V. Coa;.y, 174 Mo. 396, 74 S. 
W. 864; State v. Patterson, 73 Mo. 
695; Cohoe v. State, 82 Neb. 744, 
118 N. W. 1088; People v. Rulloff, 
3 Park. Grim. Rep. 401 ; Shires v. 
5/a/^, 2 Okla. Grim. Rep. 89, 99 
Pac. 1100; Cotn. v. Johnson, 162 Pa. 
63, 29 Atl. 2S0; State v. MoTt'o-, 21 
R. I. 376, 43 Atl. 871; State v. 
A'ho/'/', 70 Ohio St. 380, 71 N. E; 
705, 1 A. & E. Ann. Gas. 819 ; Jack- 
son V. State, 29 Tex. A pp. 458, 16 
S. W. 247; Gallcgos v. State, 48 
Tex. Grim. Rep. 58, 85 S. W. 1150; 
State V. Gates, 28 Wash. 689, 69 
Pac. 385. 

6 State V. Jacobs, 21 R. I. 259, 43 
Atl. 31 ; Bradford v. State, 146 Ala. 
150, 41 So. 471 ; Meisenheimer v. 
State, 73 Ark. 407, 84 S. W. 494; 
People V. Jones, 123 Gal. 65, 55 Pac. 
698; Gantling v. State, 41 Fla. 587, 
26 So. 737; State v. Iccnbice, 126 
Iowa, 16, 101 N. W. 273; State \. 
Wesfcott. 130 Iowa, 1, 104 N. W. 
341 ; Holland v. Com. 26 Ky. L. 
Rep. 790, 82 S. W. 596; State v. 
Banusik, — N. J. L. — , 64 Atl. 994;- 
People V. Brasch, 193 N. Y. 46, 85 
N. E. 809; State v. Rogotvav, 45 Or. 
601, 78 Pac. 987, 81 Pac. 234, 2 A. 
& E. Ann. Gas. 431 ; Ex parte Pat- 
terson, 50 Tex. Grim. Rep. 271, 95 
S. W. 1061 ; Bradshatv v. State, 49 



§ 635] CONFESSIONS. 1317 

§ 635. Credibility of confessions. — All testimony sub- 
mitted under exceptions to the fundamental rules of evi- 
dence should be deliberately and searchingly tested. There 
are no classes of evidence that invite the distrust of the courts, 
to a serious extent, except dying declarations and confessions. 
Dying declarations are rendered uncertain by the medium 
through which they must be proved. No surrounding cir- 
cumstances can be more distressing than those attending death 
from violence. The primal passions aroused, the frenzy for 
revenge, the intolerable grief of the friends of the dying man, 
all tend to render the testimony unreliable and often utterly 
at variance with the facts as they existed. The same is true, 
in a great measure, of confessions. As is well asked and 
answered by one authoritative author, "But how do they get 
to believe in the fact of a confession having been made? Al- 
ways, and necessarily, by somebody's testimony. And what is 
our experience of that sort of testimony on which we are 
asked to believe that a confession was made? A varying and 
sometimes discouraging experience. Paid informers, treach- 
erous associates, angry victims, and overzealous officers of the 
law, — these are the persons through whom an alleged confes- 
sion is often, perhaps oftenest, presented; and it is at this 
stage that our suspicions are aroused and our caution stimu- 
lated." ^ Based on experience, different courts have described 
them as the highest and most satisfactory proof of guilt,^ down 
the gamut of qualifying adjectives, until confessions have been 
called the weakest and most suspicious of all testimony.' 

Tex. Crim. Rep. 165, 94 S. W. 223 ; Mill, Const. 215 ; Swift, Ev. 133 ; 

Sowles V. State, 52 Tex. Crim. Rep. Com. v. Knapp, 9 Pick. 507, 20 Am. 

17, 105 S. W. 178; State v. Blay, Dec. 491; State v. Brown, 48 Iowa, 

77 Vt. 56, 58 Atl. 794. 384; Hopt v. Utah, 110 U. S. 584. 

1 Wigmore, Ev. § 866. 28 L. ed. 266, 4 Sup. Ct. Rep. 202. 

^ Rex V. Lambe, 2 Leach, C. L. 4 Am. Crim. Rep. 417. 
552; Mortimer v. Mortimer, 2 Hagg. ^ Fost. C. L. chap. 3, § 8; 1 Burn's 

Consist. Rep. 315; 1 Starkie, Ev. J. P. p. 566; Williams v.. Williams, 

p. 52; Columbia v. Harrison, 1 1 Hagg. Consist. Rep. 304; Bl. Com. 



1318 EVIDENCE IN CRIMINAL CASES. [CHAP XIV. 

The general distrust of confessions is evidenced by the strict 
rule regarding corroboration, and by statutory enactments 
forbidding convictions unless so corroborated.* In the lan- 
guage of Mr. Justice Foster : "Proof may be too easily pro- 
cured ; words are often misreported, — whether through ignor- 
ance, inattention, or malice, it mattereth not to the defendant; 
he is equally affected in either case; and they are extremely 
liable to misconstruction; and all this evidence is not, in the 
ordinary course of things, to be disproved by that sort of 
negative evidence by which the proof of plain facts may be, 
and often is, confronted." 

Nothing so convinces as a confession which we believe to 
be true. Nothing is so uncertain as the testimony offered to 
prove the confession. The trustworthiness of the proof of 
the confession is the vexing question. Until the matter is con- 
trolled by statute, the only safeguard is to exact the fullest 
testimony, and that of the highest testimonial value, trans- 
mitted through an intelligent medium capable of correctly 
observing and honestly narrating the facts as they exist. 

In attempting to frame rules, the text writer is twice re- 
moved from the forum of trial. First, the case is handled by 
the direct appellate court from a printed record. The human 
factor is entirely absent. Impressed only by the record, the 
court deduces a rule. Then the text writer, comparing and 
analyzing a number of cases on the same point, seeks to point 
out, at a second remove from the trial, a controlling prin- 
ciple. 

But the trial attorney, face to face with the human factors 
as expressed in the living words; familiar with the ramifica- 
tions of political and system influence, with interlaced po- 
litical interests, — is well aware that convictions are sought in 
all cases, with no thought of protecting the innocent,® but as 

bk. 4, p. 357 ; Coke. P. C. chap. 104, 5 Underbill, Crim. Ev. 2d ed. 

p. 1232. § 146, p. 278. 

* Supra, § 633, note 3. 



§ 636] CONFESSIONS. 1319 

questions of expediency that must correspond with and prove 
the correctness of the theory of the prosecution and the sa- 
gacity of the arresting officers. Their analogy, the dying 
declaration, is at least based upon necessity and solemnity; 
but the confession has not this foundation, for it is based upon 
expediency, and as a ready means of proof, avoiding the 
necessity for investigation. As the accused, when called upon 
to state whether or not he has anything to say as to why 
sentence should not be passed upon him, has never yet been 
able to say anything that would convince the court of his in- 
nocence, so the accused, when face to face with an extrajudi- 
cial confession, can never say anything to convince the court 
nor jury against its truth. In view of the untrustworthy 
medium through which the extrajudicial confession is conveyed 
to the court, the trial judge, in the absence of the jury, should 
not admit in evidence any confession which does not persuade 
him, not as a judge but as an impartial juror, that it is true 
beyond a reasonable doubt, and exists as a fact upon which 
he himself would act in the serious concerns of life. With 
this persuasion the testimony establishing the confession, and 
the confession itself, may be submitted to the jury. Other- 
wise, confessions of guilt will only serve to add to the list 
of those convictions which result in the punishment of in- 
nocent men.® 

§ 636. Mental capacity at the time of confession. — It 

is obvious that, if the confession itself is to have any testi- 

^ Perry's Case, 14 How. St. Tr. Case, 4 West. L. J. 25; Laman's 

1312; Wharton, Crim. Law, 6th ed. Life of Lincoln. See State v. Wes*, 

§ 683; Hubert's Trial, 6 How. St. 1 Houst. Crim. Rep. (Del.) 371; 

Tr. 807; Woods Case (Life of Sir Abercrombie, Intellect. Powers, 

S. Romilly) vol. 2, 3d ed. 142; 12th ed. 222. See 10 Cobbett, Par- 

Sharpe's Case, Am. Reg. Chronicle. liamentary History of England, 

p. 74; Boom's Case, 5 Law Rep. p. 283. 
195; 1 Greenl. Ev. 214; Trailor's 



1320 EVIDENCE IN CRIMINAL CASES. [CHAP XIV. 

monial value, it must be shown to have been made under con- 
ditions where there was the normal exercise of all the facul- 
ties, and that the declarant fully comprehended the effect of 
his confession. Hence, it is admissible, in order to affect the 
credibility of the confession, to show that the declarant was 
drunk,^ or insane,^ at the time. The court should look to 
the circumstances under which the confession is alleged to 
have been made, and to consider the strength or weakness 
of the accused's intellect, his knowledge, or his ignorance;^ 
whether or not the accused realized the import of ins act;* 
and the age, character, and situation of the accused, as well as 
all other circumstances bearing upon the question of whether 
or not there existed a condition or inducement that might 
lead to a false confession.^ 

A confession made by a feeble-minded person, charged with 
murder, is not convincing proof of his guilt.^ A confession 
of arson, made by a weak-minded person under arrest, in an 
office with bolted doors, and in the presence of those hostile 
to him, was not a voluntary confession.' Where a man is 
not entirely sane, but the circumstances under which he is 
placed are of such a nature as to deprive him of the free 
exercise of his faculties, his confession, unless corroborated, 
is of little or no weight. Where a confession had been ad- 
mitted in evidence, and it was afterwards shown that it was 

1 Supra, § 384a; post, §§ 675, 676. Com. 2 Duv. 531; Thomas v. State, 

2 State V. Feltes, 51 Iowa, 495, 1 35 Tex. Crim. Rep. 178, 32 S. W. 
N. W. 755; post, § 676. See also 771; Maxwell v. State, — Miss. — , 
note in 18 L.R.A. 788. 40 So. 615 ; Gallaher v. State, 40 

3 Spears v. State, 2 Ohio St. 583 ; Tex. Crim. Rep. 296. 50 S. W. 388. 
Porter v. State, 55 Ala. 95. 11 Am. Crim. Rep. 207. See Peopl? 

* Cady V. State, 44 Miss. 332. v. Howes, 81 Mich. 396, 45 N. W. 

^ State V. Squires, 48 N. H. 364; 961; State v. Albert. 50 La. Ann. 

Biscoe V. State, 67 Md. 6, 8 Atl. 481, 23 So. 609. 

571; Newman v. State, 49 Ala. 9, 1 ^Butler v. Com. 2 Duv. 435. 

Am. Crim. Rep. 173; Williams v. "^ Flagg v. People. 40 Mich. 706. 

State, 69 Ark. 599. 65 S. W. 103, 12 3 Am. Crim. Rep. 7Q 
Am. Crim. Rep. 110; Hudson v. 



§ 636a] CONFESSIONS. 1321 

made by the accused in jail, shortly after the homicide, to a 
newspaper reporter who called upon him when he was in a 
nervous condition, suffering from a shock, and was told it 
would be to his advantage to give a correct statement of the 
affair, the confession so admitted should have been with- 
drawn from the jury.* A partial loss of the faculties, for 
any reason, while not rendering a confession wholly involun- 
tary, affects its weight, and this should be considered by the 
jury,® but where such a condition is brought about by a person 
to obtain a confession, for instance, as where a sheriff had 
furnished an accused with liquor, such conduct is unjustifiable, 
and the confession must be excluded." 

§ 636a. Incomplete control of faculties at time of con- 
fession. — On the fundamental principle of exclusion, that 
where the confession is false it must be rejected, and where 
it is procured through improper inducement, there is every 
reason to believe it testimonially worthless, it is essential to 
consider whether or not the declarant had full control of the 
mental faculties.^ The general rule is that a disturbed con- 

^ Watts V. State, 99 Md. 30, 57 v. State, 99 Md. 30, 57 Atl. 542; 

Atl. 542. Flagg v. People, 40 Mich. 706, 3 

^People V. Kent, 41 Misc. 191, 17 Am. Crim. Rep. 70; State v. Smith, 

N. Y. Crim. Rep. 461, 83 N. Y. 72 Miss. 420, 18 So. 482; Hamilton 

Supp. 948; State v. Berry, 50 La. v. State, 77 Miss. 675. 27 So. 606; 

Ann. 1309, 24 So. 329. State v. Church, 199 Mo. 605, 632. 

^^McNiitt V. State, 68 Neb. 207, 98 S. W. 16. See Green v. State. 

94 N. W. 143, 14 Am. Crim. Rep. 96 Md. 384, 54 Atl. 104, 12 Am. 

127. Crim. Rep. 149 ; Com. v. Sheets, 197 

^Hoober v. State, 81 Ala. 51, 1 Pa. 69, 46 Atl. 753; Deathridge v. 

So. 574; Washington v. State, S2> State, I SneQd,75; Grayson v. Stale. 

Ala. 29; Peck v. State, 147 Ala. 100, 40 Tex. Crim. Rep. 573, 51 S. W. 

41 So. 759 ; People v. Thompson, 84 246 ; Dinah v. State, 39 Ala. 359 ; 

Gal. 598, 24 Pac. 384; State v. Pot- State v. Feltes, 51 Iowa, 495, 1 N. 

ter, 18 Conn. 166; State v. Mason, W. 755; State v. Berry, 50 La. Ann. 

4 Idaho, 543, 43 Pac. 63; Biscoe v. 1309, 24 So. 329; State v. Haworth. 

State, 67 Md. 6, 8 Atl. 571; Watts 24 Utah, 398, 68 Pac. 155; McCabe 



1322 EVIDENCE IN CRIMINAL CASES. [CHAP XIV. 

dition of the mental faculties is not a ground for exclusion,* 
but should be considered as affecting the trustworthy character 
of the confession; and this, like every other principle of limi- 
tation, varies with the circumstances of each case.' Thus, 
that the accused was not in full possession of his faculties, 
by reason of a bullet wound in his head, does not affect the 
question of admissibihty ; * where accused killed a woman and 
then attempted suicide, and was suffering greatly from the 
shock, but on the day the confession was made by him his 
mind was in a normal condition, there was no reason for 
withholding the confession from the jury on account of the 
accused's mental condition;^ that accused made a confession 
under great excitement is not ground to exclude it.^ It has 
been very correctly stated that the excitement or mental dis- 
turbance mentioned in the cases just cited is that which springs 
from the accused's own apprehension, due to the situation in 
which he finds himself, but if the excitement or mental dis- 
turbance is directly produced from extraneous pressure, ex- 
erted for the purpose of forcing a confession, it would, no 
doubt, be held that the acknowledgment of guilt is involun- 
tary.'' 

§ 637. Confessions in marital crimes. — In addition to 
the considerations first mentioned, there are peculiar reasons 

V. Com. 3 Sadler (Pa.) 426, 8 Atl. 253, 52 Pac. 505; State v. Pamelia, 

45. 122 La. 207, 47 So. 508; State v. 

As to effect of mental condition Jones, 47 La. Ann. 1524, 18 So. 515; 

of accused at time of confession, Young v. State, 90 Md. 579, 45 Atl. 

see note in 18 L.R.A. 788. 531 ; Carlisle v. State, Z7 Tex. Crim. 

^McDonald v. State, 55 Tex. Rep. 108, 38 S. W. 991; Henidon 

Crim. Rep. 208, 116 S. W. 47. v. State. 50 Tex. Crim. Rep. 552, 99 

3 See note 1. S. W. 558 ; State v. Leuth, 5 Ohio 

4 People V. Miller, 135 Cal. 69, 67 C. C. 94, 3 Ohio C. D. 48 ; State v. 
Pac. 12, 12 Am. Crim. Rep. 183. Crank, 2 Bail. L. 66, 23 Am. Dec. 

^ Green v. State, 96 Md. 384, 54 117. See also note in 18 L.R.A. 790. 
Atl. 104, 12 Am. Crim. Rep. 149. 'Note by H. C. S. to Ammons v. 

^People V. Cokahnour, 120 Cal. State, 18 L.R.A.(N.S.) 790. 



§ 638] CONFESSIONS. 1323 

for applying a close criticism to confessions of adultery. Such 
confessions may be a convenient mode of getting rid of the 
marriage tie, or may be induced by a desire to injure another, 
or to gratify a base vanity, and may be made, therefore, v^ith- 
out solid foundation. Hence such confessions, unless corrobo- 
rated, are not usually regarded as ground for divorce.^ But 
the confessions so made may be used as proof of facts in issue. 
Thus, in an indictment charging a father with living in 
adultery v^^ith his daughter, his confession that she is his daugh- 
ter is admissible,^ and such a confession is proper evidence to 
prove the fact of the marriage of one of the parties.^ 

II. Judicial Confessions. 

§ 638. Conclusiveness of. — A judicial confession, as we 
have seen,^ is a plea of guilty made by an accused in a fit state 
of mind to plead, before a court competent to try and de- 
termine the offense charged. Such a confession, to be conclu- 
sive, must be on an issue made by an indictment or informa- 
tion and a plea to the same. It is not conclusive if it is made 
in an ex parte proceeding,^ but is conclusive when formally 
made on the issue, unless shown to have been made by mistake, 
or to have been secured by fraud.^ A judicial confession, be- 
ing a plea of guilty, is competent as evidence in another prose- 
cution against the accused,* and a plea of guilty before an 

1 See Wharton, Ev. § 1220; also 18; Edson v. Freret Bros. 11 La. 
supra, § 627; Siimmerbell v. Sum- Ann. 710. See State v. Colvin, 11 
merbell, 2>7 N. J. Eq. 603. Humph. 599, 54 Am. Dec. 58. 

^Morgan v. State, 11 Ala. 289. ^Bcason v. State, 43 Tex. Crim. 

« State V. McDonald, 25 Mo. 176. Rep. 442, 69 L.R.A. 193, 67 S. W. 

» Supra, § 622c. 96; State v. La Rose, 71 N. H. 435, 

2 See Wharton, Ev. § 1078. 52 Atl. 943 ; Parker v. Couture, 63 
^ Marsh v. Mitchell, 26 N. J. Eq. Vt. 449, 21 Atl. 1102. See Yeska 

497; Com. v. Jackson, 2 Va. Cas. v. Swendrzynski, 133 Wis. 475, 113 
501 ; Gridley v. Conner, 4 La. Ann. N. W. 959. 
416; Denton v. Erwin, 5 La. Ann. 



1324 EVIDENCE IN CRIMINAL CASES. [CHAP XIV. 

examining magistrate is admissible on the final trial in its 
evidentiary character as a confession.* The accused has a 
right to enter a plea of guilty, and, unless the statute provide 
to the contrary, the court is bound to accept it, even in capital 
cases. ^ Where no such statute prevails, the accused may be 
convicted and sentence passed upon him."^ 

On the tender of such a plea, the burden of proof is on 
the prosecution to show to the court that the plea was volun- 
tary and the accused understood its effect. Like any other 
confession, it must be shown to be voluntary, that is, that it 
is uninfluenced by any improper inducement, and that it is 
not the result of a misunderstanding.® The conclusiveness of 
the plea is based upon its free and voluntary character, arising 
from a consciousness of guilt, but where it is entered from 
any other motive courts should allow it to be withdrawn on 
request, and a plea of not guilty substituted in its place.^ Thus, 
where the accused enters a plea to the wrong indictment ; ^° 
or is a foreigner, unacquainted with judicial proceedings;" 
or where the accused believed, from a remark of the judge, that 
he would receive the minimum sentence ;^^ or where there is 
a doubt as to the sanity of the accused ; " or where he pleads 

^Com. V. Brown, 150 Mass. 330. ^Gardner v. People, 106 111. 76; 

23 N. E. 49; Rice v. State, 22 Tex. Monahan v. State, 135 Ind. 216. 34 

Crim. Rep. 654, 3 S. W. 791 ; Alston N. E. 967 ; State v. Yates, 52 Kan. 

V. State, 41 Tex. 39; State v. Briggs, 566, 35 Pac. 209; Green v. Com. 12 

68 Iowa, 416, 27 N. W. 358 ; i^^c^or Allen, 155; State v. Stephens, 71 

V. Com. 80 Ky. 468; Green v. State, Mo. 535; Swang v. State, 2 Coldw. 

40 Fla. 474, 24 So. 537, 11 Am. 212, 88 Am. Dec. 593; O'Brien v. 

Crim. Rep. 253. State, — Tex. Crim. Rep. — , 35 S, 

^ State V. Branner, 149 N. C. 559, W. 666. 

63 S. E. 169. 9 People v. McCrory, 41 Cal. 458. 

"^Dantz V. State. 87 Ind. 398: ^^ Davis \\ State, 20 Gsl. 67^. 

Com. V. Brown, 150 Mass. 330, 23 " Gardner v. People, 106 111. 76. 

N. E. 49; Sellers v. People, 6 111. ^'i State v. Stephens, 71 Mo. 535. 

183; State v. Cowan, 29 N. C. (7 ^^Com. v. Battis, 1 Mass. 95; 

Ired. L.) 239; State v. Branner, 149 Burton v. State. 33 Tex. Crim. Rep. 

N. C. 559, 63 S. E. 169. 138, 25 S. W. 782; People v. Scott, 



§ 638] CONFESSIONS. 1325 

under fear and intimidation,^* a refusal to allow the plea to 
be withdrawn is a reversible error. In some states it is pro- 
vided that, on the tender of such a plea, before pronouncing 
sentence the court must investigate and satisfy itself of the 
voluntary and uninfluenced character of the plea," and such 
a statute must be strictly observed, with a view of protecting 
the accused against the extortion of such a plea through 
ignorance or by false promises.^^ In addition to a careful in- 
vestigation into the circumstances surrounding the plea, the 
court ought always to hear evidence to determine the degree 
of punishment," and in some jurisdictions such a procedure 
is properly held to be obligatory. ^^ 

When a judicial confession is made by way of a plea of 
guilty, it admits only the facts charged in the indictment, and 
while such a plea waives formal defects in the indictment,^' 
a judgment on a plea of guilty, where no legal crime is actual- 
ly averred in the indictment,^" or where the crime to which 
the plea is made is not the crime charged in the indictment,^^ 
such judgment will be reversed. No court ought to accept a 
judicial confession as final until a most searching investiga- 

59 Cal. 341 ; Deloach v. State, 77 i^ See Arrano v. People, 24 Colo. 

Miss. 691, 27 So. 618; McKevitt v. 233, 49 Pac. 271; Smith v. People, 

People, 208 111. 460, 70 N. E. 693. 32 Colo. 251, 75 'Pac. 914. 

^^ Sanders v. State, 85 Ind. 318, ^^ Carper v. State, 27 Ohio St. 

44 Am. Rep. 29. 572. 

^^ People V. Lepper, 51 Mich. 196. 20 Crow v. State, 6 Tex. 334, 335 ; 

16 N. \V. 377; People V. Lewis, 51 Fletcher v. State, 12 Ark. 169; 

Mich. 172, 16 N. W. 326. Patrick v. State, 17 Wyo. 260, 129 

^^Peoplev. Lepper, 51 Mich. 196, Am. St. Rep. 1109, 98 Pac. 588: 

199, 16 N. W. 377; Coleman v. Com. v. Kennedy, 131 Mass. 584: 

State, 35 Tex. Crim. Rep. 404, 33 Boody v. People, 43 Mich. 34, 4 N. 

S. W. 1083; Frosh v. State, 11 Tex. W. 549; State v. Levy, 119 Mo. 434, 

App. 280; Saunders v. State, 10 24 S. W. 1026; Moore v. State, 53 

Tex. App. 336, 339; Henning v. Neb. 831, 74 N. W. 319 

People, 40 Mich. 733 ; People v. 21 state v. Queen, 91 N. C. 659. 
Lezvis, 51 Mich. 172, 16 N. W. 326. 

" State V. Branner, 149 N. C. 559, 
63 S. E. 169. 



1326 



EVIDENCE IN CRIMINAL CASES. [CHAP XIV. 



tion has been made into all the conditions and surrounding 
circumstances.^'^ 

Where a plea of guilty is withdrawn by the permission of 
the court, it is not binding as a confession, nor can it be 



22 It would appear on a first re- 
flection that justice could not be 
otherwise than fully administered 
where an accused, in answer to a 
charge or information, makes a ju- 
dicial confession by way of a plea 
of guilty of the offense, and this 
would be true in fact if the accused 
had been merely arrested and safely 
detained until the coming on of his 
trial. But in a great number of 
cases the fact exists that the ac- 
cused has been subjected to a very 
searching inquisition during the in- 
tervening period, and in many in- 
stances comes into court a victim 
of false promises. It is not a 
pleasant commentary that the petty 
officers and keepers in charge of the 
jail gain the confidence of prisoners 
and direct them as to what they 
shall do when they come into court, 
often stating that, being officers, 
they are influential with the prose- 
cution and the judge, and upon a 
plea of guilty can secure a mini- 
mum jail sentence, or even a fine, 
when the charge is felony. Under 
such promises, prisoners go into 
court and express a desire to plead 
guilty. The court, believing such 
a plea results from a consciousness 
of guilt, and feeling that the ac- 
cused is entitled to consideration 
because he has saved the expense 
and time of a trial to the county, 
and has frankly confessed his fault. 



is inclined to accept the plea and 
impose the minimum penitentiary 
punishment. The accused, firmly 
convinced by what has been told 
him, that he will receive only a fine 
or a jail sentence, starts back in 
terror to find himself conclusively 
pronounced a felon and a convict, 
and that the eagerness of the petty 
officer to earn the transportation 
and mileage incident to conveying 
him to prison has deliberately sacri- 
ficed him to his petty greed. These 
incidents have occurred even where 
a careful and judicious prosecuting 
attorney has warned the prisoner 
of the power of the court, and that 
he may expect a sentence accord- 
ing to the nature of the offense ; 
but the accused, trusting in what 
he believes to be the sure promises 
of those who have advised him, 
still persists in his plea until too 
late, and then the protest of a con- 
vict is utterly unavailing. This un- 
fortunate condition arises from the 
fact that petty crimes and poverty 
crimes are so great in congested 
centers of population that the crim- 
inal classes are considered properly 
at the disposition of those who 
have charge of their detention, and 
it has become a "business" to mis- 
use the power given, and this, too, 
when both court and prosecution 
are entirely innocent of the wrong 
so shamelessly inflicted. 



I. 



639, 640] 



CONFESSIONS. 



1327 



used as evidence.^^ Where a plea is prepared for the accused 
by his attorneys, but rejected by the court, the admissions in 
such plea cannot be used as a confession,^^ nor can a plea of 
guilty be used as a confession where it is made by a person 
incompetent to make such plea, for instance, as in the case of 
infancy.^* 

§ 639. Plea in abatement as a judicial confession. — In 

criminal pleading, a plea of abatement binds the party making 
it to the allegations it contains, and unless it be withdrawn, 
these allegations cannot be repudiated by him.^ When a plea 
of abatement is decided against a defendant, in this country 
the defendant is usually permitted to plead over.^ 

§ 640. Admissions by pleadings. — So far as concerns 
the particular prosecution in which the plea is entered, it may 
be held that whenever a material averment well pleaded is 
passed over by the adverse party without denial, whether this 
be by pleading in confession and avoidance, or by demurring 
in law, or by suffering judgment to go by default, it is there- 
by, for the purpose of trial before the jury, conceded.^ "It 



28 Reg. V. Brown, 17 L. J. Mag. 
Cas. N. S. 143; State v. Cotton, 24 
N. H. 143; State v. Salge, 2 Nev. 
321 ; supra, § 615. 

2* Com. V. Lannan, 13 Allen, 563. 

^^Reg. V. Stone, 1 Fost. & F. 311 ; 
Reg. V. Simmonds, 4 Cox, C. C. 277. 

12 Hale, P. C. 176, 238; Burn, In- 
dictment, ix ; State v. Dresser, 54 
Me. 569; Com. v. Gale, 11 Gray, 
320; Lewis v. State, 1 Head, 329; 
Com. V. Farrell, 105 Mass. 189. See 
supra, §§ 94, 582. 

^ United States v. Williams, 1 
Dill. 485, Fed. Cas. No. 16,716; Rex 



V. Johnson, 6 East, 583, 2 Smith, 
591, 8 Revised Rep. 550; Rex v. 
Gibson, 8 East, 107; Reg. v. Duffy, 
4 Cox, C. C. 190. See Wharton, 
Crim. PL & Pr. §§ 433, et seq. 

1 Taylor, Ev. § 748, citing Steph- 
en, PI. 248 ; Jones v. Brown, 1 Bing. 
N. C. 484; De Gaillon v. L'Aigle, \ 
Bos. & P. 368 ; Prowse v. European 
& A. Steam Shipping Co. 13 
Moore, P. C. 484. See also State 
V. Homer, 40 Me. 438; Coffin v. 
Knott. 2 G. Greene, 582, 52 Am. 
Dec. 537. 



1328 EVIDENCE IN CRIMINAL CASES, [CHAP XIV. 

is a fundamental rule in pleading, that a material fact asserted 
on one side, and not denied on the other, is admitted. ' ^ 

§ 641. Answers under oath, as admissions. — An answer 
under oath is to be regarded as admissible against the party 
making it, in all independent suits in which it is relevant,^ and 
so of a written admission of facts made voluntarily in order 
to obtain a continuance,^ and so of a schedule in bankrupt 
proceedings.^ And a plea entered by a party in another suit 
is also collaterally admissible against him as a prima facie 
case,* though it is otherwise if the defendant was incapable, 
by infancy, of binding himself by a plea.* 

§ 642. Admissions in court process. — What has been 
said of pleading equally applies to process. A party issuing 
process prima facie admits the facts which such process as- 
sumes.^ 

III. Written Confessions. 

§ 643. Generally. — A written statement by a defendant, 
when prepared deliberately and seriously, is not only admis- 
sible in evidence against him, but is of weight proportioned to 
its solemnity and pertinency.^ Thus on a trial of an indict- 
ment for the malicious burning of a building, the voluntary 

2 Simmons v. Jenkins, 76 111. 479. 3 Abbott v. People, 75 N. Y. 602 

citing Dana v. Bryant, 6 111. 104; ^ State v. Homer, 40 Me. 438. 

Pearl v. Welbnan, 8 111. 311; Briggs ^ Reg. v. Simmonds, 4 Cox, C. C. 

V. Dorr, 19 Johns. 95 ; Jack v. Mar- 277; Reg. v. Stone, 1 Post. & F. 311. 

tin, 12 Wend. 316; Raymond v. See supra, § 615. 

Wheeler, 9 Cow. 295. ^ See cases in Wharton, Ev. § 

1 Wharton, Ev. § 1116; supra. lllS; supra. §§ 610-12. 

§ 615. 1 Wharton, Ev. § 1122; Abbott v. 

^Gonzales v. State, 12 Tex. App. People, 75 N. Y. 602; Dubose v. 

657. But see Powers v. State, 87 State, 13 Tex. App. 418. 
Ind. 144. 



§ 643] CONFESSIONS. 1329 

testimony of the defendant before a fire inquest, reduced to 
writing and signed by him, makes a strong case against him ; ^ 
and so of the bank books of a bank, kept by the defendant, 
an officer of the bank, in the course of his business.' 

Written confessions have no higher evidentiary value than 
oral confessions, but, as the fundamental object of proof of 
a confession is to render it trustworthy, the written confession, 
as just stated, when deliberately and seriously made, has a 
weight in proportion to the solemnity of its character. But 
where there is evidence of haste and inaccuracy, the written 
confession should be established by rigid proof. Thus, an 
accused charged with murder confessed to an officer, the con- 
fession being taken in shorthand and afterwards written out 
in typewriting and signed before a magistrate. When offered 
in evidence, such written statements contained a number of 
interlineations made with a pen, all of which were inculpatory, 
and some of them relating to the degree of the offense, and of 
a character rendering it doubtful as to whether or not the 
language was that of the defendant; and it was held error 
warranting a reversal of the conviction and a new trial, to 
admit such confession in evidence, in the absence of satis- 
factory evidence showing when and by whom the interlinea- 
tions were made.'* 

It is not necessary to the admissibility of a written con- 
fession that it contain the questions asked, to which the state- 
ment is an answer ; ^ nor is it necessary that it should be signed 
by the accused.^ It is not necessary that it should be in a 
language understood by the accused, if, in such case, it is 

^Com. V. Bradford, 126 Mass. 42, ^ State v. Haworth, 24 Utah, 398, 

^Humphrey v. People, 18 Hun, 68 Pac. 155. See State v. Eaton, 3 
393. Harr. (Del.) 554. See State v. 

^United States v. Williams, 103 Johnson, 5 Harr. (Del) 507. 
Fed. 938. 

^ State V. Brinte, 4 Penn. (Del.) 
551, 58 Atl. 258. 

Crim. Ev. Vol. H.— 84. 



1330 EVIDENCE IN CRIMINAL CASES. [CHAP XIV. 

translated carefully into a language he does understand, sen- 
tence by sentence, in his presence and hearing, and where it 
is admitted by the accused that he understands it and that it 
is correct.' 

§ 644. Letters. — A letter written by the defendant, 
when self-disserving, is prima facie evidence against him;^ 
though in such case the confession, to be operative, must be 
distinctly to a point material to the issue.^ It is not necessary 
to the admissibility of such a letter that it should be signed; 
if traceable to the wu'iter, and if involving a self-disserving 
admission of any kind, this is enough.^ Nor is it an objection 
that a letter stands by itself, since a letter containing a par- 
ticular confession may come in alone ; * nor is it necessary, 
when a letter is thus independent in its character, that the 
whole pertinent correspondence should be put in.^ Nor is it 
fatal to the admissibility of such letter that it was in answer 
to a letter meant as a trap.' 

On the other hand, letters of third parties are inadmissible 
when hearsay.' Hence a letter addressed to a party cannot 

' State V. Demareste, 41 La. Ann. * North Berwick Co. v. New Eng- 

617, 6 So. 136. See State v. Ber- land F. & M. Ins. Co. 52 Me. 336; 

berick, 38 Mont. 423, 100 Pac. 209, Newton v. Price, 41 Ga. 186; Wig- 

16 A. & E. Ann. Cas. 1077; People gin v. Boston & A. R. Co. 120 

V. Giro, 197 N. Y. 152, 90 N. E. 432. Mass. 201. See post, § 688. 

^Longfcllozu v. Williams, Peakc. ^ Wharton, Ev. § 618; supra. 

N. P. ■ Add. Cas. 225 ; Rose v. § 521 ; post, § 688. 

Cunynghame, 11 Ves. Jr. 550; Gib- ^ Rex v. Derrington. 2 Car. & P. 

son V. Holland, L. R. 1. C. P. 1, 1 418; Re 3,109 Cases of Champagne. 

Harr. & R. 1, 35 L. J. C. P. N. S. 1 Ben. 241. Fed. Cas. No. 14,012; 

5, 11 Jur. N. S. 1022, 13 L. T. N. S. Com. v. Knapp, 10 Pick. 496, 20 

293, 14 Week. Rep. 86; Wilkins v. Am. Dec. 534; Com. v. Tuckerman, 

Burton, 5 Vt. 76; Robertson v. 10 Graj-, 173; Price v. State, 18 

Ephraim, 18 Tex. 118. Ohio St. 418; post, § 670. 

2 Betts V. Farmers' Loan & T. 7 Williams v. Manning, 41 How. 

Co. 21 Wis. 81, 91 Am. Dec. 460. Pr. 454; Wolstcnholme v. Wolsten- 

^ Bartlett v. Mayo, 33 Me. 518. holme, 3 Lans. 457; Rosenstock v. 



§§ 645, 645a] confessions. 1331 

be admitted against him * unless it be proved that he received 
it and acted on it,^ or in some way invited it." 

§ 645. Telegrams. — Telegrams, under the same restric- 
tions as those which have been noticed as appertaining to let- 
ters, may be also treated as constituting admissions on the 
part of the person by whom they are sent.^ Duly proved, they 
may be treated as self-disserving admissions, which, so far 
as concerns the party from whom they emanate, are subject 
to the usual incidents of such admissions.^ In order, however, 
to charge a party with a telegram, the original draft, in the 
handwriting of the party or his agent, must be produced.* 
But a sender may be regarded as the employer of the telegraph 
company in such a sense as to make the message sent and 
delivered by the company primary evidence.* 

§ 645a. Magistrate's report. — Where written confes- 
sions which are made before a coroner or a committing mae- 
istrate are controlled by statute, their admissibility is measured 

Tormey, 32 Md. 169, 3 Am. Rep. v. Arrowsmith, 18 L. T. N. S. 75; 

125; Underwood v. Linton, 44 Ind. Henkel v. Pape, L. R. 6 Exch. 7, 

72; Livingston v. Iowa Midland R. 40 L. J. Exch. N. S. 15, 23 L. T. 

Co. 35 Iowa, 555. N. S. 419, 19 Week. Rep. 106; 

^ Payne v. Com. 31 Gratt. 855. Verdin v. Robertson, 10 Sc. Sess. 

9 See Medzuay v. United States, 6 Cas. 3d series, 35 ; 20 Alb. L. J. 39. 
Ct. CI. 421 ; Oakley v. State, 135 3 Durkee v. Vermont C. R. Co. 29 

Ala. 15, 33 So. 23. Vt. 127; Benford v. Sanner, 40 Pa. 

^^Reg. V. Cooper, L. R. 1 Q. R. 9, 80 Am. Dec. 545; Matteson v. 

Div. 19, 45 L. J. Mag. Cas. N. S Noyes, 25 111. 591; Williams v. 

15, 33 L. T. N. S. 754, 24 Week. Brickell, 37 Miss. 682, 75 Am. Dec. 

Rep. 279, 13 Cox, C. C. 123. 88; supra, §§ 162, 521. 

1 See supra, § 521. 4 Durkee v. Vermont C. R. Co. 

2 Com. V. Jeffries, 7 Allen, 548, S3 29 Vt. 127; supra, §§ 162, 521. See 
Am. Dec. 712; Beach v. Raritan & Reg. v. Cooper, L. R. 1 Q. B. Div. 
D. B. R. Co. 2,7 N. Y. 457 ; Taylor 19, 45 L. J. Mag. Cas. N. S. 15, 33 
V. The Robert Campbell, 20 Mo. L. T. N. S. 754, 24 Week. Rep. 279, 
254 ; Wells v. Mihvankee & St. P. 13 Cox, C. C. 123 ; post, § 682. 

R. Co. 30 Wis. 605. See Coupland 



1332 EVIDENCE IN CRIMINAL CASES. [CHAP XIV. 

by compliance with the statute. But where not so controlled, 
the writing so made may be used, even where it is not admis- 
sible as a final statement : First, like any other memorandum 
to aid and refresh the memory ; ^ second, where signed by the 
accused it becomes his by adoption, and even an oral acknowl- 
edgment of the correctness of the statement is sufficient.^ 
However, such written confession before the magistrate does 
not exclude parol proof of the same confession,' and, where 
the accused has made a written confession, parol evidence of 
confessions on other occasions is admissible.* 

§ 645b. Parol evidence of written confession; when ad- 
missible. — Where the prisoner voluntarily confesses be- 
fore an examining magistrate, and where it is the duty of 
the latter to take the examination in writing, when such is 
done, the writing alone, if producible, is evidence of the con- 
fession, and the writing cannot be varied by parol proof.* 

1 Layer's Trial, 16 How. St. Tr. l Supra, §§ 643, 645a ; 1 Leach, C. 
192; Reg. v. Troop, 30 N. S. 339. L. 309; Post. C. L. 255; Roscoe. 
See Marx v. Hart, 166 Mo. 503, 89 Crim. Ev. 60; Rex. v. Walter, 7 
Am. St. Rep. 715, 66 S. W. 260. Car. & P. 267; Reg. v. Morse, 8 

2 Rex V. Lambe, 2 Leach, C. L. Car. & P. 605 ; Reg. v. Bond, 4 Cox, 
3d ed. 625 ; Rex v. Thomas, 2 Leach. C. C. 231, 4 New. Sess. Cas. 143, 

C. L. 3d ed. 727. See Foster's Case, Temple & M. 242, 1 Den. C. C. 517, 

1 Lewin, C. C. 46. 3 Car. & K. Z2,7, 19 L. J. Mag. Cas. 
^ State V. Eaton, 3 Harr. (Del.) N. S. 138, 14 Jur. 399; State v. Vin- 

554; State v. Johnson, 5 Harr. cent, Houst. Crim. Rep. (Del.) 11; 

(Del.) 507; State v. Smith, 9 State v. Brister, Houst. Crim. Rep. 

Houst. (Del.) 588, 33 Atl. 441; (Del.) ISO; Robinson v. State, 87 

Wright v. State, 50 Miss. 332, 1 Ind. 292; State v. Branham, 13 S. 

Am. Crim. Rep. 191 ; State v. Irzvin, C. 389 ; State v. Parish, 44 N. C. 

2 N. C. (Hayw.) 112; State v. (Busbee, L.) 239; State v. Irwin, 
Leiith, 5 Ohio C. C. 94, 3 Ohio C. 2 N. C. (1 Hayw.) 113; Cicero v. 

D. 48. State, 54 Ga. 156; Wright v. State, 
estate V. Wells, 1 N. J. L. 424, 1 50 Miss. 332, 1 Am. Crim. Rep. 191. 

Am. Dec. 211; Com. v. Dower, 4 See State v. Rover, 13 Nev. 17. 
Allen, 297. See Bailey v. State, 26 
Tex. App. 706, 9 S. W. 270. 



§ 645c] CONFESSIONS. 1333 

Parol evidence, however, of a confession made during an ex- 
amination before a magistrate, is admissible, although it was 
taken down in writing by the magistrate, if from informality 
the written examination is not admissible.^ When the official 
record is lost, its contents may be proved by parol.^ An ex- 
amination, though informal, may be used to refresh the mem- 
ory of a witness who was present and took it down.* 

Statements collateral to the examination are not excluded 
by the examination ; ^ nor does a subsequent examination nec- 
essarily exclude a prior oral confession.^ 

In Maine it is held that parol evidence of a confession made 
in a v/ritten examination is admissible."' 

IV. Admissibility of Confessions as Determined by 

Threats or Promises. 

§ 645c. Voluntary character of confessions. — As will 
be hereafter more fully shown,^ the question of the voluntary 
or involuntary character of the confession is the distinct and 
controlling issue on the question of admissibility. It is not 

2 Supra, §§ 643, 645 ; Rex v. Bell, 4 Car. & P. 550, note a ; Rex v. 

5 Car. & P. 162; Rex v. Fearshire, Thomas, 2 Leach, C. L. 637; Rex 

1 Leach, C. L. 202; Rex v. Reed, v. Jacobs, 1 Leach, C. L. 310, 

Moody & M. 403; State v. Vincent. Fisher's Case, 1 Leach, C. L. 310, 

Houst. Crim. Rep. (Del.) 11; State 311. 

V. Brw/rr, Houst. Crim. Rep. (Del.) ^ Supj-g^ §§ 543^ 645a; Rex v. 
150; Brown v. State, 71 Ind. 470; Bell, 5 Car. & P. 162; Rex v. Spils- 
State V. Parish, 44 N. C. (Busbee, bury, 7 Car. & P. 188; Rowland v. 
L.) 239. See People v. Taylor, 59 Ashby, Ryan & M. 231 ; Leach v. 
Cal. 640. Simpson, 5 Mees. & W. 312, 7 Dow!. 

2 Supra, §§ 643, 645a; Hightowcr P. C. 513, 3 Jur. 654; Rex v. Har- 

V. State, 58 Miss. 636. ' ris, 1 Moody, C. C. 338; Roscoe. 

4 Supra, §§ 643, 645a; Rex v. Tel- Crim. Ev. 8th ed. 59. 

icofe, 2 Starkie, 483; Foster's Case, ^ Supra, §§ 643, 645a; Rex v. 

1 I.ewin, C. C. 46; Hirst's Case, 1 Carfy, Macnally, Ev. p. 45. 

Lewin, C. C. 46; Rex v. Pressly, 6 'Supra, §§ 643, 645a; State v. 

Car. & P. 183; Rex v. Jones, Car. Bowe, 61 Me. 171. 

Crim. Law, 13; Rex v. IVatkins, 1 Post, § 674a. 



1334 EVIDENCE IN CRIMINAL CASES. [CHAP XIV. 

the confession itself that is the serious question for the court, 
but the controlhng factor is the history and character of the 
testimony through which it is sought to estabhsh the confes- 
sion. If, on the incoming of such proof, the confession is 
shown beyond a reasonable doubt to be voluntary and free 
from improper inducement, then it is always admitted, but, 
where it is shown to be involuntary, or that improper induce- 
ment existed, it ought always to be excluded. It has been 
observed ^ that, in some states, courts indulge the presumption 
that a confession is prima facie voluntary, but the accused al- 
ways has the right to show the fact, and thus rebut the pre- 
sumption, and on the incoming of such proof the court is 
compelled to weigh the evidence against the presumption, as 
carefully as in the case where the primary burden is upon the 
state to show the voluntary character of the confession.^ 

§ 646. Confession excluded because of threats. — Not 

only is it an indictable offense to apply torture to another for 
the purpose of extorting a confession; ^ but all confessions so 
induced will be rejected, if offered to prove a case of guilt.^ 

2 Supra, § 622k. v. State, 2 Coldw. 223 ; Com. v. 

* As to when confession is vol- Ciiffee, 108 Mass. 285 ; Greer v. 

untary, see note in 18 L.R.A. State, 31 Tex. 129; State v. Claris- 

(N.S.) 768. sa, 11 Ala. 57; Spence v. State, 17 

estate V. Hobbs, 2 Tyler (Vt.) Ala. 197; Wyatt v. State, 25 Al.n. 

380; State v. Lazvson. 61 N. C 12; Brister v. State, 26 Ala. 107, 

(Phill. L.) 47; Brister v. State, 26 129; Van Buren v. State, 24 Miss. 

Ala. 107. 512; Young v. State, 68 Ala. 576; 

2 Post, § 661; United States v. Redd v. State, 69 Ala. 25S; Hunt v. 

Nott, 1 McLean, 499, Fed. Cas. No. State, 135 Ala. 1, 33 So. 329; Mil- 

15,900; Flagg v. People, 40 Mich. ler v. People, 39 111. 457; Taylor v. 

706, 3 Am. Crim. Rep. 70 ; Berry Com. 19 Ky. L. Rep. 836, 42 S. W. 

V. State, 10 Ga. 511; Butler v. Com. 1125; Dugan v. Com. 102 Ky. 241, 

2 Duv. 435; Joe v. State, 38 Ala. 43 S. W. 418; State v. Revclls. 34 

422; Serpentine v. State, 1 How. La. Ann. 384, 44 Am. Rep. 436; 

(Miss.) 256; Frank v. State, 39 .S'^af^ v. Foi/h^, 52 La. Ann. 478, 27 

Miss. 705; Hector v. State, 2 Mo. So. 50, 12 Am. Crim. Rep. 154; 

166, 22 Am. Dec. 454; McGlothlin Peter v. State, 4 Smcdes & M. 36: 



I 



§ 646] CONFESSIONS. 1335 

And even when violence is not used, the mere threat to apply 
it in any shape works a similar exclusion. Hence, a confes- 
sion will not be received if it appear, in the opinion of the 
court, to have been influenced by threats of physicial punish- 
ment of any kind, or of any kind of pecuniary or other 
temporal penalty.' The general rule is that confessions in- 
duced by putting the accused in fear are involuntary, and must 
be excluded without regard to the theory of exclusion which 
may control the court; that is, first, where they are excluded 
upon the theory that no man ought to be required to give evi- 
dence against himself; or, second, the theory which makes 
trustworthiness the test of admissibility.^* 

But what threats or acts will induce the fear that will vitiate 
and render involuntary the confession depends upon the cir- 
cumstances of the concrete case before the court. It is clear 
that, to escape physical consequences, the accused will "utter 
what his tormentors desire to hear, — a confession." Thus, 

Williams v. State, 72 Miss. 117, 16 Wend. 231; People v. Rankin, 2 

So. 296; Mackmasters v. State, 82 Wheeler, C. C. 467; State v. Brick, 

Miss. 459, 34 So. 156, 12 Am. Crim. 2 Harr. (Del.) 530; Moore v. Com. 

Rep. 119; State v. Moore, 160 Mo. 2 Leigh, 701; Smith v. Com. 10 

443, 61 S. W. 199 ; Territory v. Gratt. 734 ; Brown v. People, 91 111. 

McClin, 1 Mont. 396; State v. Dil- 506; Stephen v. State, 11 Ga. 225; 

dy, 72 N. C. 327; State v. Drake, Earp v. State, 55 Ga. 136, 1 Am. 

82 N. C. 593 ; Deathridge v. State. Crim. Rep. 171 ; Rector v. Com. 80 

1 Sneed, 76; Warren v. State, 29 Ky. 468; Deathridge v. State, 1 

Tex. 369; Barnes v. State, 36 Tex. Sneed, 75; Boyd v. State, 2 Humph. 

356; Thompson v. Com. 20 Gratt. 39; Ann v. State, 11 Humph. 159; 

731; Edmonson v. State, 72 Ark. Self v. State, 6 Baxt. 244; Garrard 

585, 82 S. W. 203; Beckham v v. State, 50 Miss. 147; Hector v. 

State, 100 Ala. 15, 14 So. 859; State State, 2 Mo. 166, 22 Am. Dec. 454; 

V. Brittain, 117 N. C. 783, 23 S. E. Runnels v. State, 28 Ark. 121 ; 

433. Barnes v. State, 36 Tex. 356 ; Terri- 

^ State V. Grant, 22 Me. 171; tory v. McClin, 1 Mont. 39i; Beery 

State V. Phelps, 11 Vt. 116, 34 Am. v. United States, 2 Colo. 186. 
Dec. 672; Com., v. Chabbock, ] 3a As to admissibility of confes- 

Mass. 144 ; Com. v. Drake, 15 Mass. sion induced by fear, see note in 

161; Com. v. Knapp, 9 Pick. 496, 20 18 L.R.A.(N.S.) 804. 
Am. Dec. 491 ; People v. Ward, 15 



1336 



EVIDENCE IN CRIMINAL CASES. [CHAP XIV. 



I 



where the prosecutor, a strong, vigorous man, the former 
master of the accused, charged him with stealing, teUing him 
it would be better for him to own up, although at the same 
time perfunctorily stating that he would make no promises, 
the accusation was held to be of such a nature as to produce 
fear, and render the confession involuntary,* A confession 
made while undergoing corporal punishment is inadmissible.^ 
Confessions obtained by mob violence are always held involun- 
tary, and hence inadmissible.^ But the violence that will render 
a confession involuntary must be directed to the purpose of 
extorting a confession, and not merely violence that may be 
necessary to arrest and detain the accused. Thus, where the 
accused was running away, and was ordered to throw up his 
hands, by one who pretended to have a weapon, and, on obey- 
ing the command, he was seized by the collar and roughly 
handled, a confession made thereupon was not inspired by 
such fear or violence as to render it involuntary ; "^ nor where 



^ State V. Brockman, 46 Mo. 566. 
See Dram v. United States, 168 U. 
S. 532, 42 L. ed. 568, 18 Sup. Ct. 
Rep. 183, 10 Am. Crim. Rep. 547. 

5 State V. Gilbert, 2 La. Ann. 245 ; 
Brown v. State, 26 Tex. App. 303, 
9 S. W. 613 ; Hector v. State, 2 Mo. 
166, 22 Am. Dec. 454; Joe v. State, 
38 Ala. 422; State v. Lawson, 61 N. 
C. (Phill. L.) 47; Serpentine v. 
State, 1 How. (Miss.) 256. 

^Flagg v. People, 40 Mich. 706. 
3 Am, Crim. Rep. 70; Self v. State, 
6 Baxt. 244; Strady v. State, 5 
Coldw. 300; Miller v. People, 39 111 
457; State v. Young, 52 La. Ann 
478, 27 So. 50, 12 Am. Crim. Rep 
154; Jacksor. v. State, 50 Tex. Crim 
Rep, 302, 97 S. W. 312; Whitley v 
:itate, 78 Miss. 255, 53 L.R.A. 432. 
28 So. 852, 12 Am. Crim. Rep. 122 ; 



Williams v. State, 72 Miss. 117, 16 
So. 296; Wigginton v. Com. 92 Ky. 
287, 17 S. W. 634; Thompson v. 
Com. 20 Gratt. 724; Warren v. 
State, 29 Tex. 369; Young v. State. 
68 Ala. 569; Green v. Com. 26 Ky 
L. Rep. 1221, 83 S. W. 638; State v, 
Revells, 34 La. Ann. 381, 44 Am. 
Rep. 436; SVite v. Gianfala, 113 La. 
463, 37 So. 30; State v. Parish, 78. 
N. C. 492; Irwin v. State, 54 Ga. 39; 
Allen V. State, 4 Ga. App. 458, 61 
S. E. 840 ; State v. Drake, 82 N. C. 
592; State v. Dildy, 72 N. C. 325. 
See State v. Houston, 76 N. C. 256; 
State V. Moore, 160 Mo. 443, 61 S. 
W. 199; Edmonson v. State, 72 Ark. 
585, 82 S. W. 203. 

"^Anderson v. State, 133 Wis. 601, 
114 N. W. 112. 



§ 646] CONFESSIONS. 1337 

violence was used to stop accused from preventing an ac- 
complice from making a confession;^ nor where an assault 
v/as committed on accused for the purpose of disarming him, 
to prevent him from injuring another, not not for the purpose 
of eliciting a confession, the confession not being made until 
later.^ 

While mob violence will render a confession involuntary, it 
is not every assemblage of men that will serve to put the ac- 
cused in fear. Thus, where some fifty persons had gathered 
around the officer having the accused in charge, the officer 
declaring that he would protect the accused, and where there 
was no manifestation by the crowd against the accused, such 
circumstances did not render the confession involuntary; ^° 
nor where the accused was a prisoner in a calaboose surround- 
ed by a crovv^d of men, a confession made at the time was not 
thereby rendered involuntary ; ^^ nor where the accused was 
put aboard a train, and a large crowd of armed men were as- 
sembled at the depot, and there was some talk of lynching, 
and he afterwards made a confession in the jail, when he 
was in no danger of personal violence, and there was no 
demonstration, such surroundings did not make the confes- 
sion involuntary ; ^^ nor is the presence of a crowd about a 
jail or place where accused is confined, where no demonstra- 
tions are made, a circumstance that renders a confession then 
made involuntary.^^ 

^Andrews v. People, 33 Colo. ^^ State v. Reddick, 7 Kan. 143; 

193. 108 Am. St. Rep. 76, 79 Pac. State v. Ingram, 16 Kan. 14; Cady 

1031. V. State, 44 Miss. 332, overruled in 

^Connors v. State, 95 Wis. 77, 69 Williams v. State, 72 Miss. 117, 16 

N. W. 981. So. 296; Territory v. EmiUo, 14 N. 

^^ People V. Miller, 135 Cal. 69, M. 147, 89 Pac. 239; State v. Efler, 

67 Pac. 12, 12 Am. Crim. Rep. 183. 85 N. C. 585 ; State v. Daniels, 134 

^^Hilburn V. State, 121 Ga. 344, N. C. 641, 46 S. E. 743; Dugan v. 

49 S. E. 318. Com. 102 Ky. 241, 43 S. W. 418, 

^^ Shepherd v. Slate, 3\ Neb. 389, State v. Anderson, 96 Mo. 241, 9 

47 N. W. 1118. S. W. 636; State v. McKencie, 144 



1338 



EVIDENCE IN CRIMINAL CASES. [CHAP XIV. 



Fear of death will not render a confession involuntary," 
nor fear of legal consequences which will probably result in 
legal punishment.^* 

§ 646a. Threats; sweat-box confessions. — Confessions 
obtained throrgh the sweat box of the police system render a 
confession involuntary. Thus, keeping a prisoner in a dark 
cell known as the sweat box, visiting him daily, and asking him 
whether he is ready to confess, and promising better quarters 
if he does confess, constitutes an extortion of an involuntary 
confession ; * or, where the accused was confined in the sweat 
box and the exhortation was constantly made that it would be 
better to tell the truth, the custom being to let him out when 
he confessed what the police "thought he ought to," was extort- 
ing an involuntary confession;^ and, likewise, where a con- 



Mo. 40, 45 S. W. 1117; Honeycutt 
V. State, S Baxt. 371 ; Stevens v. 
State, 138 Ala. 71, 35 So. 122; State 
V. Howard, 92 N. C. 772; De Ar- 
man v. State, 71 Ala. 351. 

While the rule is clear that where 
the violence is exerted for the pur- 
pose of extorting a confession, 
such confession is involuntary, and 
where the violence is incidental, 
and not for the purpose of extort- 
ing a confession, the confession is 
voluntary, there are decisions 
where, if the facts are expressed 
correctly in the printed report, the 
courts are not justified in holding 
the confession involuntary. State 
V. Coclla, 3 Wash. 99, 28'Pac. 23; 
State V. Houston, 76 N. C. 256; 
Liner v. State, 124 Ala. 1, 27 So. 
438; Mose v. State, 36 Ala. 211. 

^^ State v. Gorham, 67 Vt. 365, 
31 Atl. 845, 10 hm. Crim. Rep. 25 ; 
Jackson V. State, 49 Tex. Crini, 
Rep. 215, 91 S. W. 78a 



^^Com. V. Mitchell. 117 Mass. 
431 ; Com. v. Preece. 140 Mass. 276. 
5 N. E. 494, 5 Am. Crim. Rep. 107 ; 
Allen V. State, 12 Tex. App. 190: 
Territory v. Emilio, 14 N. M. 147, 
89 Pac. 239; Gentry v. State, 24 
Tex. App. 80, 5 S. W. 660; Neeley 
V. State, 27 Tex. App. 324, IJ S 
W. 376; State v. Johnny, 29 Nev. 
203, 87 Pac. 3; State v. Storms, 113 
Iowa, 385. 86 Am. St. Rep. 380. 85 
N. W. 610; People v. Thorns, 3 
Park. Crim. Rep. 256; Honeycutt 
V. State, 8 Baxt. 371. 

^ State V. McCullum, 18 Wash. 
394, 51 Pac. 1044. 

^ Atnmons v. State, 80 Miss. 592, 
92 Am. St. Rep. 607, 32 So. 9, 12 
Am. Crim. Rep. 82, and note there- 
to in 18 L.R.A.(N.S.) 768, as to 
when confession is voluntary. See 
State V. Auguste, 50 La. AniL 488, 
23 So. 612. 



§ 646b] CONFESSIONS. 1339 

tession was extorted by the violence of the sheriff.' However, 
mere sohtary confinement will not render the confession in- 
voluntary. It is when such confinement is used as a means 
of punishment, with a promise to better the condition, as a 
result of the confession. The entire history of judicial sys- 
tems in all ages is that the privilege to cross-examine a person 
results in the assumption that the questioner has the right to 
extort the answer that will sustain his assumption of guilt.* 

§ 646b. Threats; adjuration. — Adjurations, unaccom-. 
panied by a threat or promise, are not sufficient to render a 
confession involuntary.^ Hence the following, addressed to 
the accused, were held not to render the confession inadmis- 
sible as being obtained through threats : "Now remember, if 
you know the parties you had better tell me. I would not 
suffer for anyone else ;" ^^ and the following : "Tell the truth 
about the whole matter, and keep nothing back;" ^ "We have 
got you this time. We have traced you around until we are 
satisfied you have got the cow ;" ' "The more lies told in such 
cases, the deeper one gets in the mud;" * "I am satisfied that 
there are other receivers whom we have not discovered. I 
should like to have you make a clean breast of it;" ^ "It is no 
use for you to deny the crime." ^ But where the adjuration 

'^ State V. Albert, 50 La Ann. 481, ^^ State v. Alphonse, 34 La. Ann. 

23 So. 609. See State v. Robertson, 9. 

Ill La. 35, 35 So. 375. ^ Haiik v. State. 148 Ind. 238, 46 

nVigmore, Ev. § 2251; Under- ^'- E- 127, 47 N. E. 465. 

hill. Crim. Ev. 2d ed. § 146; 1 ^ ^^'"- ^- ^ '"ttemore, 11 Gray, 

Greenl. Ev. § 219; Priest v. State, ^^l' ,,. , , ^ 

10 Neb. 393, 2 N. W. 468; Coffee v. ' ^/"'- ^- ^f'^^^^^^^; 117 Mass. 431.- 

State, 25 Fla. 501, 512, 23 Am. Si. ^^"'•.;- ^''"'Ji .- ^li 

D coc .: c xn-) Territory v. McKern, 3 Idaho, 

Kep. 525, 6 So. 493. ^c oe^ n lo^ c. . r? 

15, 26 Pac. 123; State v. Freeman, 

lAs to effect of advice or exhor- \2 Ind. 100; People v. McCallam, 3 

tation on admissibility of confes- N. Y. Crim. Rep 189; People v. 

sion, see note in 18 L.R.A.(N.S.) McCallam, 103 N. Y. 587, 9 N. E 

812. 502. 



1340 EVIDENCE IN CRIMINAL CASES. [CHAP XIV. 

is accompanied by an inducement, either by way of threat or 
promise, it renders the confession inadmissible. Thus, on a 
promise to accused that if he would tell where the money was 
he would not "prosecute him heavy ;"''^ "We have got other 
things against you nearly as good as this ;" ^ "If you do not tell 
all you know about the business you will be put in the dark 
room and hanged," ^ — such expressions excluding the confes- 
sion as being involuntary. 

§ 646c. Threats to prosecute. — Courts are not at all 
agreed upon the question of whether or not a threat to prose- 
cute is sufficient to render a confession involuntary. On the 
principle that putting the accused in fear, and the desire to es- 
cape consequences, tends to render the confession untrust- 
worthy, it would seem that the desire to escape a present pros- 
ecution would also tend to the same effect. Thus, telling a 
man that he will be put in charge of the police was held to 
render the confession involuntary ; ^ saying to a man, "If you 
do not tell me who your partner was, I will commit you to 
prison as soon as we can get to Newcastle," was held to be a 
threat rendering the confession involuntary.^ But almost sim- 
ilar threats have been held not sufficient to render the confes- 
sion involuntary ; ^ thus, where a party overhearing a threat 
came forward and made a statement, it was held that a threat 
made against one could not affect the admissibility of a con- 

"^ Rector v. Com. 80 Ky. 468. Beckham v. State, 100 Ala. 15, 14 

8 Com. V. Nott, 135 Mass. 269. So. 859. 

^People V. Rankin, 2 Wheeler, C. ^ Rex v. Parrott, 4 Car. & P. 570. 

C. 467. 3 State v. Nash, 45 La. Ann. 974. 

^ Reg. V. Luckhitrst. 6 Cox, C. C. 13 So. 265; State v. Vicknair, 52 

243, Dears. C. C. 245. 2 C. L. R. La. Ann. 1921, 28 So. 273; Allen v. 

129, 23 L. J. Mag. Cas. N. S. 18, 17 State, 12 Tex. App. 190; Young v. 

Jur. 1082, 2 Week. Rep. 97; John- State, 50 Ark. 501, 8 S. W. 828: 

son V. State, 76 Ga. 76; Rex v. Bohanau v. State, 92 Ga. 28, 18 S. 

Thompson. 1 Leach, C. L. 2Q1 ; E. 302; United States v. Nott, 1 

Reg. V. Hearn, Car. & M. 109; McLean, 499, Fed. Cas. No. 15,900 



§ 646d] CONFESSIONS. 1341 

fession made by another,^ and a threat to bring a civil action 
against accused for the vakie of the property alleged to be 
stolen will not render a resulting confession involuntary.^ 

§ 646d. Character of threats that render a confession 
involuntary. — It is obvious that, where the confession fol- 
lows immediately upon the threat being made, it is induced by 
the threat, and the confession partakes of a nature that will 
avoid the punishment. This is clearly illustrated in a case 
where the chief of police testified that the accused had con- 
fessed that he had entered the house for the purpose of lar- 
ceny, and accused then testified that the chief said to him that 
he might get his neck broken or go to the penitentiary, and 
that it would be better to say that he went to the house to get 
money for his supper, and the accused then said that if it 
would do him any good he would say so.^ Here it is clear 
that the confession made was not the truth, but was made in 
accordance with the suggestion contained in the threat. 

There is no particular form of words that constitutes a 
threat that would put the accused in fear, and hence each case 
must depend on the facts and surrounding circumstances dis- 
closed by the testimony, so that the rule must be broadly stated 
that threats that put the accused in fear are those that tend to 
elicit an untrustworthy confession.^ 

^Reg. V. Jacobs, 4 Cox, C C. 54. 78 Ga. 98, 6 Am. St. Rep. 238; 

^Cropper v. United States, Mor- State v. Mason, 4 Idaho, 543, 43 

ris (Iowa) 259. Pac. 63; Smith v. State, 10 Ind. 

"^Maxwell v. State. — Miss. — , 106; State v. Chambers, 39 Iowa, 

40 So. 615. 179; State v. Willing, 129 Iowa, 72, 

2 United States v. PumpJireys, 1 105 N. W. 355 ; Wigginton v. Com. 

Cranch, C. C. 74, Fed. Cas. No. 92 Ky. 282, 17 S. W. 634; State v. 

16,097; Hoober v. State, 81 Ala. 51, Albert, 50 La. Ann. 481. 23 So. 609; 

1 So. 574; Edmonson v. State, 72 People v. Stewart, 7S Mich. 21, 42 

Ark. 585. 82 S. W. 203 ; People v. N. W. 662 ; Whitley v. State, 78 

Ah How, Z^ Cal. 218; Simon v. Miss. 255, 53 L.R.A. 402. 28 So. 

State, 5 Fla. 285; Daniels v. State, 852, 12 Am. Crim. Rep. 122; Max- 



1342 



EVIDENCE IN CRIMINAL CASES. [CHAP XIV. 



§ 646e. Promise in general. — Promises to the accused, 
to be kept in case a confession is made, are generally consid- 
ered an inducement that renders the confession involuntary, 
but, to be a controlling inducement, the promise must be posi- 
tive ; it must hold out such a benefit to the accused as would be 
likely to induce him to give a false confession.^ 

Mitigation of punishment, such as stating to the accused 
that it will go lighter with him if he owns up and pleads guil- 
ty, is regarded as sufficient to render the confession involun- 
tary.^ 

A promise of secrecy cannot be held an inducing promise, 
as, on the assurance of secrecy, the accused would incline rath- 
er to state the truth than a falsehood.^ 



well V. State, — Miss. — , 40 So. 
615; State v. Jones, 54 Mo. 478; 
State V. Crowson, 98 N. C. 595, 4 
S. E. 143; State v. Fields, Peck 
(Tenn.) 140; Clayton v. State, 31 
Tex. Crim. Rep. 489, 21 S. W. 255 ; 
Jackson V. State, 50 Tex. Crim. 
Rep. 302, 97 S. W. 312; State v. 
McCullum, 18 Wash. 394, 51 Pac. 
1044. 

^Necley v. State, 27 Tex. App. 
324, 11 S. W. 376; Cannada v. State, 
29 Tex. App. 537, 16 S. W. 341: 
Searcy v. State, 28 Tex. App. 513, 
19 Am. St. Rep. 851, 13 S. W. 782; 
People V. Castro, 125 Cal. 521, 58 
Pac. 133 ; People v. Gonzales, 136 
Cal. 666, 69 Pac. 487, 12 Am. Crim. 
Rep. 97; State v. Jackson, 3 Perm 
(Del.) 15, 50 Atl. 270; Dixon v. 
State, 113 Ga. 1039, 39 S. E. 846; 
Smith V. State, 125 Ga. 252, 54 S. 
E. 190; State v. Jay, 116 Iowa, 264, 
89 N. W. 1070, 12 Am. Crim. Rep. 
93 ; Harvey v. State, — Miss. — , 20 
So. 837 ; Mitchell v. State, — Miss. 
— , 24 So. 312; Hamilton v. State, 



77 Miss. 675, 27 So. 606. See also 
note in 18 L.R.A.(N.S.) 820. 

2 State V. Middleton, 69 S. C. 72. 
48 S. E. 35 ; McNish v. State, 45 Fla 
83, 110 Am. St. Rep. 65, 34 So. 219, 
12 Am. Crim. Rep. 125; Smith v. 
State, 125 Ga. 252, 54 S. E. 190; 
State V. Day, 55 Vt. 510, 4 Am. 
Crim. Rep. 104; Cass's Case, 1 
Leach. C. L. 293; Johnson v. State. 
89 Miss. 773, 42 So. 606; State v. 
Smith, 72 Miss. 420, 18 So. 482; 
Owen V. State, 78 Ala. 425, 56 Am. 
Rep. 40, 6 Am. Crim. Rep. 206; 
McVeigh v. State, 43 Tex. Crim. 
Rep. 17, 62 S. W. 757, 12 Am. Crim. 
Rep. 143 ; Newman v. State, 49 Ala. 
9, 1 Am. Crim. Rep. 173 ; Ander- 
son V. State, 104 Ala. 83, 16 So. 108; 
Sorenson v. United States, 74 C. C. 
A. 468, 143 Fed. 820; People v. 
Kurtz, 42 Hun, 340. 

3 Lawson v. State, — Tex. Crim. 
Rep. — , 50 S. W. 345; State v. 
Squires, 48 N. H. 364; State v. 
Mitchell. 61 N. C. (Phill. L.) 447; 
Rex V. Shaw, 6 Car. & P. 372; Mor- 



§ 646e] CONFESSIONS. 1343 

A promise not to prosecute, or to compromise the matter, 
or that the "matter would be dropped," or to "tell the truth 
and that would be the last of it," are such substantial induce- 
ments that they are generally deemed to create such a hope 
of benefit as to render the confession involuntary.* 

A promise of pardon, generally being made upon a condi- 
tion of furnishing state's evidence, furnishes such a hope of 
immunity that a confession induced thereby is generally re- 
jected as involuntary,^ and where the accused makes such a 
confession, but afterwards repudiates his agreement, the con- 
fession so made cannot be used against him.^ 

It should be observed that the natural result of a threat is 
to put in fear, and the natural result of a promise is to induce 
hope. Hence, putting in fear, or holding out hope, is merely 
stating the results of something that has gone before, but 
courts frequently express the matter in confusing general 
terms, by stating that a confession induced by threat or fear 
or promise or hope is involuntary. The hope which is the re- 
sult of the promise must be one that will directly benefit the 

ris V. State, 39 Tex. Crim. Rep. State v. Stebbins, 188 Mo. 387, 87 

371, 46 S. W. 253 ; Rex v. Thomas, S. W. 460 ; Neeley v. State, 27 Tex. 

7 Car. & P. 345. App. 324, 1 S. W. 376. 

^Diaughn v. State, 76 Miss. 574, ^ Reg. v. Boswell, Car. & M. 584; 

25 So. 153, 11 Am. Crim. Rep. 192; Reg. v. Blackburn, 6 Cox, C. C. 32>o; 

Boyd V. State, 2 Humph. 39 ; Aus- Mackmastets v. State, 82 Miss. 459, 

tine V. Peot>le, 51 111. 236; State v. 34 So. 156, 12 Am. Crim. Rep. 119. 
Hagan, 54 Mo. 192; Murphy v. ^ Reg. v. Gillis, 11 Cox, C. C. 69, 

State, 63 Ala. 1 ; Rex v. Jones, 14 Week. Rep. 845 ; Lauderdale v. 

Russ. & R. C C. 152; United States State, 31 Tex. Crim. Rep. 46, 2,7 

V. Nott, 1 McLean, 499, Fed. Cas. Am. St. Rep. 788, 19 S. W. 679; 

No. 15,900; Byrd v. State, 68 Ga. Lope:: v. State, 12 Tex. App. 27; 

661 ; Porter v. State, 55 .A.la. 95 ; Womack v. State, 16 Tex. App. 

Meadows v. State, 136 Ala. 67, 34 178; Neeley v. State, 27 Tex. App. 

So. 183; People v. Williams, 133 324, 11 S. W. 376; R. v. Bnrley, 

Ca). 165, 65 Pa. 323; 5'/rt^^ v. Jay, cited in 2 Starkie, Ev. 13; State v. 

116 Iowa, 264, 89 N. W. 1070, 12 Moran, 15 Or. 262, 14 Pac. 419 

Am. Crim. Rep. 93; State v. Hunt- See Com. v. Knapp. 10 Pick. 477, 

er, 181 Mo. 316, 80 S. W. 955. See 20 Am. Dec. 534, 



1344 



EVIDENCE IN CRIMINAL CASES. [CHAP XIV. 



accused personally, by way of escape, or immunity from pun- 
ishment for the crime charged.' Where the hope is merely 
the mental hope, or mental belief, of the accused, it is insuffi- 
cient to render the confession involuntary, because the induce- 
ment must come from some extraneous pressure, and be in- 
spired by a third person.^ 

§ 647. Mere adjuration to speak the truth does not ex- 
clude. — But a mere adjuration to speak the truth does not 
vitiate a confession, when neither threats nor promises are ap- 
plied.^ Thus when a prisoner under fourteen years of age. 
charged with murder, was told by a man who was present 
when he was apprehended, "Now kneel down; I am going to 



^ Daniels v. State, 78 Ga. 98, 6 
Am. St. Rep. 23S; Stone v. State, 
105 Ala. 60, 17 So. 114; Matthews 
V. State, 9 Lea, 128, 42 Am. Rep. 
667; State v. Tatro, 50 Vt. 483, 3 
Am. Crim. Rep. 165 ; Com. v. Wil- 
son, 186 Pa. 1, 40 Atl. 283, 11 Am. 
Crim. Rep. 261 ; Frank v. State, 39 
Miss. 705 ; Com. v. Knapp, 10 Pick. 
477, 20 Am. Dec. 534 ; State v. Mor- 
an, 15 Or. 262, 14 Pac. 419. See 
Womack V. State, 16 Tex. App. 
178; Lauderdale v. State, 31 Tex. 
Crim. Rep. 46, 37 Am. St. Rep. 
788, 19 S. W. 679; Lopes v. State. 
12 Tex. App. 27; Neeley v. State, 
27 Tex. App. 324, 11 S. W. 376; 
Cox V. People, 80 N. Y. 500. 

8 Com. V. Knapp, 9 Pick. 496, 20 
Am. Dec. 491 ; State v. Anderso^', 
96 Mo. 241, 9 S. W. 636; Cady v. 
State, 44 Miss. 332; Stale v. Staley, 
14 Minn. 105, Gil. 75; Wade v. 
State, 25 Ohio C. C. 279; Thomp- 
son V. State, 19 Tex. App. 593 ; 
Grimsinger v. State, 44 Tex. Crim. 
Rep. 1, 69 S. W. 583 ; Price v. State, 



114 Ga. 855, 40 S. E. 1015, 12 Am 
Crim. Rep. 203; Com. v. Smith, 119 
Mass. 305 ; Hecox v. State, 105 Ga. 
625, 31 S. E. 592; Com. v. Sego. 
125 Mass. 210; Hardy v. United 
States, 3 App. D. C. 35 ; Bohanan v. 
State, 92 Ga. 28, 18 S. E. 302 ; Mil- 
ncr V. State, 124 Ga. 86, 52 S. E. 
302; State v. Griffin, 48 La. Ann. 
1409, 20 So. 905; State v. Grover, 
96 Me. 363, 52 Atl. 757, 12 Am. 
Crim. Rep. 128; People v. Swetland, 
77 Mich. 53, 43 N. VV. 779, 8 Am. 
Crim. Rep. 282; State v. Patrick, 
48 N. C. (3 Jones, L.) 443; Bruce 
V. State, — Tex. Crim. Rep. — , 53 
S. W. 867 ; Hall's Case. 2 Leach. C. 
L. 559; State v. Havelin, 6 La. Ann. 
167; Minton v. State, 99 Ga. 254. 
25 S. E. 626. 

1 See post, § 654; Benson v. State, 
119 Ind. 488, 21 N. E. 1109; Reg. 
V. Sleemaji, 6 Cox, C. C. 245, 
Dears. C. C. 249, 2 C. L. R. 129. 
23 L. J. Mag. Cas. N. S. 19, 17 
Jur. 1082, 2 Week. Rep. 97; Reg. 
V. Jarvis, L. R. 1 C. C. 96. 



§ 648] 



CONFESSIONS. 



1345 



ask you a very serious question and I hope you will tell me the 
truth, in the presence of the Almighty," and the prisoner in 
consequence made a statement, this was held admissible.^ So, 
where the mother of a young lad of eight, who was arrested 
by the police, said to him and another, "You had better, as 
good boys, tell the truth," it was held that the confession was 
admissible.^ Nor, as it has been held, is it a valid objection 
that the defendant had been called upon to touch the deceased's 
body.* But where a constable, after having asked the prison- 
er what he had done with the stolen property, said "You had 
better not add a lie to the crime of theft," Gaselee, J., refused 
to receive in evidence a statement thereupon made by the 
prisoner.^ The mere fact, however, that the appeal to speak 
the truth is made by an officer to a party under arrest does 
not exclude the confession.^ 

§ 648. Representing that concealment is folly does not 
exclude. — A confession made under the representation of 
the infamy or folly of a concealment, if without threats or 
promises, may be received.'^ Yet this should be carefully 



^Rex V. Wild, 1 Moody, C. C. 
452; Reg. v. Kerr, 8 Car. & P. 
179. 

^Reg. V. Reeve, L. R. 1 C. C. 
362, 41 L. J. Mag. Cas. N. S. 92, 
26 L. T. N. S. 403, 12 Cox, C. C. 
179, 20 Week. Rep. 631; 1 Green, 
Crim. Rep. 398. 

See also Cady v. State, 44 Miss. 
333; Com. v. Sego, 125 Mass. 210. 

* People V. Johnson, 2 Wheeler, 
C. C. 361. 

See State v. Storms, 113 Iowa, 
385, 86 Am. St. Rep. 380. 85 N. 
W. 610; Territory v. Etnilio, 14 
N. M. 147. 89 Pac. 239; Rex v. 
Gibney, Jebb, C. C. 15. 

Crim. Ev. Vol. II.— 85. 



^Rex V. Shepherd, 7 Car. & P. 
579. 

^ Rex V. Thornton, 1 Moody, C. 
C. 27; Rex v. Gibney, Jebb, C. C. 
15; Reg. v. Kerr, 8 Car. & P. 176; 
Reg. V. Johnston, 15 Ir. C. L. 
L. Rep. 60; Com. v. Holt, 121 
Mass. 61 ; Harding v. State, 54 Ind. 
359; Wolf V. Com. 30 Gratt. 833: 
State V. McLaughlin, 44 Iowa, 82; 
King v. State, 40 Ala. 314; Davis 
V. State, 2 Tex. App. 588; R. v. 
Devlin, 2 Craw. & D. C. C. (Ir.) 
152; Taylor, Ev. § 804. 

^Com. V. Mitchell, 117 Mass. 
431 ; State v. Crank, 2 Bail. L. 
66, 23 Am. Dec. 117; Hazvkins v. 



1346 



EVIDENCE IN CRIMINAL CASES. [CHAP XIV. 



guarded, since if such statements take the shape of a threat, 
they operate to exclude. 

§ 649. Confessions to persons in authority. — Confes- 
sions made to persons in authority, such as constables, arrest- 
ing officers, or to magistrates, are not excluded by the mere 
fact that they were made to such persons, unless it appears 
that an improper inducement was made by such authoritative 
person.^ But the rule is equally well settled that even a slight 
inducement held out by such a person renders the confession 



State, 7 Mo. 190; Fonts v. State, 
8 Ohio St. 98. 

But see People V. Ward, 15 
Wend. 231 ; Oakley v. Schoon- 
maker, 15 Wend. 226; Cady v. 
State, 44 Miss. 333; post, § 654. 

1 Reg. V. Baldry, 12 Eng. L. & 
Eq. Rep. 59, 5 Cox, C. C. 523, 
2 Den. C. C. 430. 21 L. J. Mag. 
Cas. N. S. 130, 16 Jur. 599; Com. 
V. Sturtivant, 117 Mass. 122; Com. 
V. Smith, 119 Mass. 305; Murphy 
V. People, 63 N. Y. 590; Wolf v. 
Com. 30 Gratt. 833; Aaron v. 
State, 37 Ala. 106; State v. Car- 
lisle, 57 Mo. 102; State v. Bruce, 
2,Z La. Ann. 186; State v. Stalcy, 
14 Minn. 105, Gil. 75; State v. 
McLaughlin, 44 Iowa, 83; State 
V. Ingram, 16 Kan. 14. 

See supra, § 631; Perkins v. 
State, 60 Ala. 7; Stallings v. State, 
47 Ga. 572; Sullins v. State, 53 
Ala. 474; Com. v. Eagan, 190 Pa. 
10, 42 Atl. 374; Redd v. State, 68 
Ala. 492; People v. Wents, 37 N. 
Y. 304; McElroy v. State, 75 Ala. 
9; Jackson v. State, 69 Ala. 249; 
Re.v V. Ryan, 9 Ont. L. Rep. 137, 
4 A. & E. Ann. Cas. 875; Re 



Lewis, 9 Can. Crim. Cas. 233 ; Rex 
V. Todd, 13 Manitoba L. Rep. 364; 
Stevens v. State, 138 Ala. 71, 35 
So. 122; State v. Quinn, 2 Penn. 
(Del.) 339, 45 Atl. 544; Ftiller v. 
State, 109 Ga. 809, 35 S. E. 298; 
Price V. State, 114 Ga. 855, 40 S. 
E. 1015, 12 Am. Crim. Rep. 203; 
State V. Storms, 113 Iowa, 385, 86 
Am. St. Rep. 380, 85 N. W. 610; 
State V. Auguste, 50 La. Ann. 488, 
23 So. 612; Com. v. Sturtivant, 
117 Mass. 122, 19 Am. Rep. 
401; State v. Stebbins, 188 Mo. 
387, 87 S. W. 460; Roesel v. State, 
62 N. J. L. 216, 41 Atl. 408; 
Broiun v. State, 62 N. J. L. 666, 42 
Atl. 811; People v. Kennedy, 159 
N. Y. 346, 70 Am. St. Rep. 557, 54 
N. E. 51; State v. Daniels, 134 N. 
C. 641, 46 S. E. 743; State v. Mc- 
Daniel, 39 Or. 161, 65 Pac. 520; 
Carmicheal v. State, — Tex. Crim. 
Rep. — , 54 S. W. 903; Bain v. 
State, — Tex. Crim. Rep. — , 74 
S. W. 542; James v. State, 124 
Wis. 130, 102 N. W. 320. 

For note as to admissibility of 
confessions made to persons in au- 
thority see 18 L.R.A.(N.S.) 843. 



650] 



CONFESSIONS. 



1347 



involuntary, because the accused would have reason to believe 
that such person is not only credible, but is in a position to 
carry the inducement into effect.^ 

§ 650. Persons in authority. — The trustworthiness of 
a confession depends upon the nature of the inducement held 
out, and the strength of this inducement depends upon the 
power of the person offering it. Hence, the class of persons 
to whom the confession is made is often an important con- 
sideration. The earlier decisions limit the controlling induce- 
ment to that held out by a person having a legal interest in, or 
authority in, the arrest and prosecution.* 



^Reg. V. Thompson [1893] 2 Q 

B. 12, 62 L. J. Mag. Cas. N. S. 93 
5 Reports, 392, 69 L. T. N. S 
22, 41 Week. Rep. 525, 17 Cox, C 

C. 641, 57 J. P. 312, 8 Eng. Rul 
Cas. 90, 9 Am. Crim. Rep. 269 
Rex V. Tyler, 1 Car. & P. 129 
Rex V. Spencer, 7 Car. & P. 776 
Reg. V. Taylor, 8 Car. & P. 733 
Reg. V. Moore, 2 Den. C. C. 522^ 

3 Car. & K. 153, 21 L. J. Ma 
Cas. N. S. 199, 16 Jnr. 621, 5 
Cox, C. C. 555 ; Rex v. Gibbons, 1 
Car. & P. 97; Rex v. Slaughter, 

4 Car. & P. 543, note; Rex v. 
Dunn, 4 Car. & P. 543; Smith v. 
Com. 10 Gratt. 734; State v. 
Patterson, 73 Mo. 695; State v. 
Jones, 54 Mo. 478; State v. Mor- 
gan, 35 W. Va. 260, 13 S. E. 385 ; 
Com. V. Morey, 1 Gray, 461 ; State 
V. Staley, 14 Minn. 105, Gil. 75; 
Com. V. Pifer, 120 Mass. 185 ; Peo- 
ple V. Clarke, 105 Mich. 169. 62 N. 
W. 1117; Heldt v. State, 20 Neb. 
496. 57 Am. Rep. 835, 30 N. W 
626; Jones v. State, 58 Miss. 349; 
IVard V. State, 50 Ala. 120; Rex 



V. Kamakana, 3 Haw. 313 ; State v. 
York, 37 N. H. 175; Spears v. 
State, 2 Ohio St. 583; United States 
V. Stone, 8 Fed. 232; People v. 
Silvers, 6 Cal. App. 69, 92 Pac. 
506; Young v. Com. 8 Bush, 366; 
State V. Cruse, 74 N. C. 491 ; State 
V. Holden, 42 Minn. 350, 44 N. 
W. 123; Cady v. State, 44 Miss. 
332 ; Roszczyniala v. State, 125 Wis. 
414, 104 N. W. 113; Com. v. 
Tuckerman, 10 Gray, 173; Thorn's 
Case, 4 N. Y. City Hall Rec. 81; 
Reg. V. Viau, Rap. Jud. Quebec, 7 
B. R. 362; Reinoehl v. State, 62 
Neb. 619, ^7 N. W. 355; Rice v. 
State, 22 Tex. App. 654, 3 S. W. 
791; Ulrich v. People, 39 Mich. 
245; Lee v. State, 45 Miss. 114; 
State V. Fredericks, 85 Mo. 145; 
Miller V. State, 94 Ga. 1, 21 S. E. 
128. 

^Rex V. Rozv, Rnss. & R. C. C. 
153; Rex v. Gibbons, 1 Car. & P. 
97; Reg. v. Taylor, 8 Car. & P. 
734. 

See 2 Levvin, C. C. 125, note; 
United States v. Stone, 8 Fed. 260. 



1348 EVIDENCE IN CRIMINAL CASES. [CIIAP XIV 

While the distinctions between a superior and an inferior 
class are not legally marked in this country, there exists, at 
the time that a confession is made, a distinct superiority over 
the accused in the class of persons that may surround him. 
The famihar illustrations of parent and child, master and 
servant, officer and prisoner, the injured person and the ac- 
cused, the employer and employee, serve to mark this distinc- 
tion, and hence the rule in this country is recognized that 
the actual state of relations between the accused and the per- 
son in apparent authority must always be inquired into with 
reference to the probable strength of the inducement.^ 

Under the present industrial conditions, the most extensive 
class of persons in authority is represented by the officers, 
managers, superintendents, heads of departments, and lesser 
grades, over the vast number of employees of industrial cor- 
porations, which last class looks to its relations with the others 
in every matter of material concern. Thus, a corporate em- 
ployee would look to the head of his department with abso- 
lute trust and reliance, knowing that such head is powerful 
enough either to override or to nullify any prosecution, so 
that a confession made by such a person would be controlled 
by the inducement.' 

§ 650a. Particular relations constituting persons in au- 
thority. — That the actual relations between the parties, 
and perhaps the relation as it actually appeared to the ac- 

2 Greenl. Ev. § 224; Co?rt. V. Mor- 18 So. 482; Hamilton v. State, 

ty, 1 Gray, 461; Murphy V. State, 63 77 Miss. 675, 27 So. 606; Reg. v. 

Ala. 3; Freeman v. Brezvster, 93 Ga. Thompson [1893] 2 Q. B. 12, 62 L. 

648, 21 S. E. 165 ; Ulrich v. People, J. Mag. Cas. N. S. 93, 5 Reports, 

39 Mich. 249 ; People v. Wolcott, 392, 69 L. T. N. S. 22, 41 Week. Rep. 

51 Mich. 614, 17 N. W. 78; State v. 525, 17 Cox, C. C. 641, 57 J. P. 312, 

Force, 69 Neb. 162, 95 N. W. 42, 8 Eng. Rul. Cas. 90, 9 Am. Crim. 

12 Am. Crim. Rep. 160. Rep. 269. See also note in 18 L.R.A. 

estate V. Smith, 72 Miss. 420, (N.S.) 854. 



§ 651] CONFESSIONS. 1349 

cused, is the controlling factor, is illustrated in the follow- 
ing instances : An Indian agent appointed by law is, as to 
the Indians on his reservation, a person in such authority that 
a confession made to him under inducement is involuntary; ^ 
an attorney investigating a crime for the purpose of prose- 
cution is a person in authority ; ^ where goods were stolen 
from a partnership, the wife of one partner, to whom a con- 
fession was made, was held to be a person in authority ; ^ the 
wife of a police officer, who was employed as a searcher of 
female prisoners, was held to be a person in authority.* 

§ 651. Rule in earlier English cases. — In the earlier 
English cases, the tendency was to exclude confessions in- 
duced by promises, irrespective of the condition of the per- 
son promising. Thus, confessions have been held inadmissi- 
ble when they resulted from such statements by prosecutors 
as the following: "Tell me where the things are, and I will 
be favorable to you ;" ^ or, "You had better say where you 
got the property;"^ or, "It would have been better for you 
if you had told at first ;"^ or, "You had better tell all you 
know;"* or, "I should be obliged to you if you would tell 
all you know; if you will not, of course we can do nothing." ^ 
And it is now agreed that any advice to a prisoner by a per- 
son in authority, telling him it would be better for him if 
he confesses, vitiates a confession induced by it.^ The ad- 

^ Reg. V. Pah-cah-pah-ne-capi, 4 ^ Rex v. Walklcy, 6 Car. & P. 

Can. Crim. Cas. 93. 175. 

2 Reg. V. Croydon, 2 Cox, C. C. * Re.v v. Kingston, 4 Car. & P. 

67. 387. 

8 Reg. V. Warringham, 2 Den. C. ^ j^^x v. Partridge, 7 Car. & P. 

C. 447, note, 15 Jur. 318. 551. But see Com. v. Sego, 125 

'^Reg. V. Windsor, 4 Post. & F. Mass 210. 

360. 6 2 East, P. C. 659; 7?f(7. V. A<?w. 

1 Rex V. Cass, 1 Leach, C. L. 293, 8 Car. & P. 140 ; Rex v. Richards, 5 

note; Boyd v. State, 2 Humph. 39. Car. & P. 318; Rex v. Thomas, 6 

^ Rex V. Dunn, 4 Car. & P. 543. Car. & P. 353; Rex v. Jones, Russ 



1350 



EVIDENCE IN CRIMINAL CASES. [CHAP XIV. 



vice, however, must be made or sanctioned by a person in 
authority, to justify the exclusion of the confession.''^ It has 
been doubted whether the principle extends to any other cases ; 
and it has been held that a promise made by an indifferent 
person, who interfered officiously without any kind of au- 
thority, and promised, without the means of perfonnance, 
cannot be deemed sufficient to produce any effect even on the 
weakest mind, as an inducement to confess ; and accordingly 
confessions made under such circumstances, to authoritative 
persons, have been admitted in evidence.* In such cases the 
question is simply whether the influences applied were likely 
to produce untruth. Authority, however, in this sense, is 
assumed to belong to a prosecutor, when exercising the power 



& R. C. C. 152; Rex v. Parratt, 4 
Car. & P. 570; Reg. v. Garner, 2 
Car. & K. 920, 1 Den. C. C. 329, 3 
New Sess. Cas. 329, Temple & M. 
7, IS L. J. Mag. Cas. N. S. 1, 12 
Jur. 944, 3 Cox, C. C. 175 ; Reg. v. 
Fennell, L. R. 7 Q. B. Div. 147, 50 
L. J. Mag. Cas. N. S. 126, 44 L. T. 
N. S. 687, 29 Week. Rep. 742, 14 
Cox, C. C. 607, 45 J. P. 666 ; Reg. v. 
Hatts, 49 L. T. N. S. 780, 48 J. P. 
248; State v. York, 37 N. H. 175; 
Vaughan v. Com. 17 Gratt. 576. See 
Hawkins v. State, 7 Mo. 190; post, 
§§ 672-674; Reg. v. Mansfield, 14 
Cox, C. C. 639; post, § 654; Com. 
V. Nott, 135 Mass. 269. 

TRex V. Row, Russ. & R. C. C. 
153; Rex v. Gibbons, 1 Car. & P. 
97; Rex v. Hardzvich, 1 Car. & P. 
98, note ; Rex v. Tyler, 1 Car. & P. 
129 ; Rex v. Green, 6 Car. & P. 655 ; 
Reg. V. Baldry, 12 Eng. L. &: Eq. 
Rep. 591, 5 Cox. C. C. 523, 2 Den. 
C. C. 430, 21 L. J. Mag. Cas. N. S. 
130, 16 Jur. 599; R v. Berigan, 1 
Irish Cir. R. 177 (Cork Lent As- 



sizes, 1841) ; Reg. v. Parke'-. 8 Cox, 
C. C. 465 ; Reg v. Hall, 12 Cox, C. 
C. 159 ; Com. v. Tuckernian, 10 
Gray, 173; Young v. Com. 8 Bush, 
366; State v. Kirby, 1 Strobh. L. 
155 ; Wilson v. State, 3 Heisk. 232. 

Contra, Reg. v. Drew, 8 Car. & P. 
140. Compare Rex v. Parratt, 4 
Car. & P. 570; Rex v. Thompson, 1 
Leach, C. L. 291 ; Reg. v. Fleming. 
Armstrong, M. & O. 330. 

8 Rex V. Hardzvich, 6 Petersd. 
Abr. 84; Reg. v. Taylor, 8 Car. & 
P. 734 ; Reg. v. Sleeman, Dears. C. 
C. 249, 2 C. L. R. 129, 23 L. J. Mag. 
Cas. N. S. 19, 6 Cox, C. C. 245, 17 
Jur. 1082, 2 Week. Rep. 97. Com- 
pare Rex V. Gibbons, 1 Car. & P. 
97; Rex v. Tyler, 1 Car. & P. 129; 
Rex V. Lingate, 6 Petersd. Abr. 84; 
Rex V. Spencer, 7 Car. & P. 776; 
Reg. V. Reason, 12 Cox, C. C. 228; 
Reg. V. Jones, 12 Cox, C. C. 241 ; 
United States v. Stone, 8 Eed. 232; 
State V. Simon, SO Mo. 370; Reg. 
V. Parker, 9 Week. Rep. 699; Ros- 
coe, Crim. Ev. 44. 



§ 651a] 



CONFESSIONS. 



1351 



of instituting or withholding a prosecution.' But even in 
such case the language used must be such as to leave the im- 
pression that the accused, being in custody, would be bet- 
tered by a confession, or that he would be punished if he did 
not confess.^" 

§ 651a. To magistrates, police officers, etc. — In accord- 
ance with the well-settled rule, that confessions to persons in 
authority are treated as involuntary and hence inadmissible, 
confessions made to magistrates,^ to prosecuting attorneys,^ 
to the prosecutor himself,' and to legally authorized police 
officers,* are generally excluded, where inducements are held 
out by such authoritative persons, not because of the position 



9 Reg. V. Rue, 34 L. T. N. S. 
400; Reg. v. Halts, 49 L. T. N. S. 
780, 48 J. P. 248; Deathridge v. 
State, 1 Sneed, 75 ; Heard v. State, 
59 Miss. 545 ; post, § 656. 

10 Post, §§ 672, 673 ; Com. v. Sego, 
125 Mass. 210. Cited supra, § 647; 
Cox V. People, 80 N. Y. 500. 

1 United States v. Cooper, Fed. 
Cas. No. 14,864; United States v. 
Pocklington, 2 Cranch, C. C. 293, 
Fed. Cas. No. 16,060; People v. 
Clarke, 105 Mich. 169, 62 N. W. 
1117; Biscoe v. State, 67 Md. 6, 8 
Atl. 571; Garrard v. State, 50 Miss. 
147 ; People v. Robertson, 1 Wheel- 
er, C. C. 66; Rex v. Cooper, 5 Car. 
& P. 535; State v. Howard, 17 N. 
H. 171. See also note in 18 L.R.A. 
(N. S.) 848. 

^ State V. Hunter, 181 Mo. 316, 
80 S. W. 955 ; People v. Clarke, 105 
Mich. 169, 62 N. W. 1117; People v. 
Silvers, 6 Cal. App. 69, 92 Pac. 506 ; 
Corley v. State, 50 Ark. 305, 7 S. 
W. 255 ; Simmons v. State, 61 Miss. 
243; S carles v. State, 6 Ohio C. C. 



331, 3 Ohio C. D. 478. See also 
note in 18 L.R.A. (N.S.) 849. 

^People V. Smith, 15 Cal. 409; 
State V. Walker, 34 Vt. 296 ; White 
V. State, 70 Ark. 24, 65 S. W. 937, 
12 Am. Crim. Rep. 86 ; Sullivan v. 
State, 66 Ark. 506, 51 S. W. 828, 11 
Am. Crim. Rep. 280; Rice v. State, 
22 Tex. App. 654, 3 S. W. 791; 
Reg. V. Jackson, 2 Can. Crim. Ca.=;. 
149; Rector v. Com. 80 Ky. 46S. 
See also note in 18 L.R.A. (N.S.) 
849. 

^ State V. Staley, 14 Minn. 105, 
Gil. 75; Ward v. State, 50 Ala. 120; 
Com. V. Taylor, 5 Cush, 605 ; Bub- 
ster V. State, 33 Neb. 663, 50 N. W. 
953; Bram v. United States, 168 U. 
S. 532, 42 L. ed. 568, 18 Sup. Ct. 
Rep. 183, 10 Am. Crim. Rep. 547; 
Rex V. Kamakana, 3 Haw, 313: 
State V. Cruse, 74 N. C 491; 
Vaughan v. Coin. 17 Gratt. 576; 
Roesel v. State, 62 N. J. L. 216, 41 
Atl. 408; State v. George, 15 La. 
Ann. 145; State v. Bradford, 156 
Mo. 91, 56 S. W. 898; Page v. Com. 



135: 



EVIDENCE IN CRIMINAL CASES. [CHAP XIV. 



of such persons, but from the fact that inducements coming 
from such persons are sufficient to render confessions made 
in consequence thereof involuntary.^ 

§ 652. By servant to master. — The relation of servant 
and master does not of itself render the confession made in 
such relation involuntary, and at one time the authorities 
seemed to uphold the rule that the offense involved must be 
an offense which directly concerned the master, in which case 
the inducements were considered such as were likely to lead 



2} Gratt. 954; State v. Morgan, 35 
W. Va. 260, 13 S. E. 385 ; Nichol- 
son V. State, 38 Md. 140; Com. v. 
Curtis, 97 Mass. 574; Rex v. Roiv, 
Russ. & R. C. C. 153 ; Green \i. 
State, 88 Ga. 516, 30 Am. St. Rep. 
167, 15 S. E. 10; Com. v. Hudson, 
185 Mass. 402, 70 N. E. 436; Har- 
din V. State, 66 Ark. 53, 48 S. W. 
904; People v. Barric, 49 Gal. 342, 
1 Am. Grim. Rep. 178; People v. 
Thompson, 84 Gal. 598, 24 Pac. 384 ; 
State V. Willis, 71 Gonn. 293, 41 
Atl. 820; West v. United States, 20 
App. D. G. 347, 12 Am. Grim. Rep. 
89; United States v. Nardello, 4 
Mackey, 503; Blalack v. State, 79 
Miss. 517, 31 So. 105; Mackmasters 
V. State, 82 Miss. 459, 34 So. 156, 
12 Am. Grim. Rep. 119; State v 
Davis, 125 N. G. 612, 34 S. E. 198, 
12 Am. Grim. Rep. 59; State v. 
Wintzingerode, 9 Or. 153; State v. 
Nagle, 25 R. I. 105, 105 Am. St. 
Rep. 864, 54 Atl. 1063; Earp v. 
State, 55 Ga. 136, 1 Am Grim. Rep. 
171 ; Smith v. State, 88 Ga. 627, 15 
S. E. 675; State v. Jay, 116 Iowa, 
264, 89 N. W. 1070, 12 Am. Grim. 
Rep. 93 ; Hudson v. Com. 2 Duv. 



531 ; Collins v. Com. 15 Ky. L. Rep. 
691, 25 S. W. 743 ; State v. Alexan- 
der, 109 La. 557, 33 So. 600, 12 Am. 
Grim. Rep. 102; Com. v. Taylor, 5 
Gush. 605; Com. v. Noti, 135 Mass. 
269; Com. v. Myers, 160 Mass. 530, 
36 N. E. 481; Com. v. Antaya, 184 
Mass. 326, 68 N. E. 331, 12 Am. 
Grim. Rep. 135 ; Flagg v. People. 40 
Mich. 708, 3 Am. Grim. Rep. 70; 
People V. Wolcott, 51 Mich. 612, 12 
N. W. 78 ; People v. McCullough, 81 
Mich. 25, 45 N. W. 515; Ford v. 

State, 75 Miss. 101, 21 So. 524; Har- 
vey V. State, — Miss. — , 20 So. 837 ; 

Mitchell V. State, — Miss. — , 24 So. 

312; Couley v. State, 12 Mo. 462; 
Territory v. Underzvood, 8 Mont. 
131, 19 Pac. 398; Bullock v. State, 

65 N. J. L. 557, 86 Am. St. Rep. 668, 

47 Atl. 62; State v. York. 37 N. H. 

175; People v. Phillips, 42 N. Y. 

200; Vaughan v. Com. 17 Gratt. 

576; Rex v. Shepherd, 7 Gar. & P. 

579; Reg. v. Bate, 11 Cox, G. C. 

686; Territory v. McClin, 1 Mont. 

394. See also note in 18 L.R.A. 

(N.S.) 849. 
5 See supra, notes 1-4. 



§ 652a] 



CONFESSIONS, 



1353 



the accused to confess falsely, either from a feeling- of de- 
pendency, or from the expectation of lighter punishment if 
the confession was made,^ but where the offense did not con- 
cern the master, mere advice did not exclude ; ^ and where, 
on an indictment for infanticide, the accused was told by her 
mistress, "she had better speak the truth," the confession was 
received,' because the offense in no way concerned the mis- 
tress. However, the limitation that the offense mast con- 
cern the master does not apply in the later cases, but the fact 
of dominion and authority should be considered in deter- 
mining the voluntary character of the confession.* 

§ 652a. To sundry authorities. — The fact that there is 
a relation between the parties is not sufficient of itself to ex- 
clude a confession made under such relations. Such confes- 
sions would be governed entirely, as to their voluntary or 
involuntary character, by the inducement made. Thus the 



1 Reg. V. Garner, 2 Car. & K. 920, 
3 New. Sess. Cas. 329, 1 Den. C. C. 
329, Temple & M. 7, 18 L. J. Mag. 
Cas. N. S. 1, 12 Jur. 944, 3 Cox, C. 
C. 175 ; Joy, Confessions, 23. See 
also note in 18 L.R.A.(N.S.) 854. 

2 Cam V. Sego, 125 Mass. 210. 

3 Reg. V. Moore. 2 Den. C. C. 522, 
3 Car. & K. 153, 21 L. T. Mag. Cas. 
N. S. 199, 16 Jur. 621, 12 Eng. 
L. & Eq. Rep. 583, 5 Cox, C. C. 
555; Reg. v. Rue, 34 L. T. N. S. 
400. See also Rex v. Upchurch, 1 
Moody, C. C. 465; Reg. v. Taylor, 
8 Car. & P. 733; Reg v. Kerr, 8 
Car. & P. 179; Reg. v. Hewett, Car. 
& M. 534; Rex v. Parratt, 4 Car. 
& P. 570; Reg. v. Warringham, 15 
Jur. 318, 2 Den. C. C. 447, note: 
Com. V. Morey, 1 Gray, 462; Com. 
V. Taylor, 5 Gush. 608; Spears v. 



State, 2 Ohio St. 583; Reg. v. 
Hearn, Car. & M. 109; Reg. v. Jar- 
vis, L. R. 1 C. C. 96; Roscoe, Grim. 
Ev. 8th ed. 42 ; Reg. v. Sleeman, 
Dears. C. C. 249, 6 Cox, C. C. 245, 
2 C. L. R. 129, 23 L. J. Mag. Cas. 
N. S. 19, 17 Jur. 1082, 2 Week. Rep. 
97; Reg. v. Luckhurst, Dears. C. C. 
245, 2 C. L. R. 129, 23 L. J. Mag. 
Cas. N. S. 18, 17 Jur. 1082, 2 Week. 
Rep. 97, 6 Cox, C. C. 243; Smith v. 
Com. 10 Gratt. 734. 

^Hoober v. State, 81 Ala. 51, 1 
So. 574; State v. Bostick, 4 Harr. 
(Del.) 563; Hamilton v. State, 77 
Miss. 675. 27 So. 606; State v. 
Whitfield, 70 N. C. 356; IVyatt v. 
State, 25 Ala. 9; Dinah v. State, 39 
Ala. 359; State v. Nelson, 3 La. 
Ann. 497. 



1354 EVIDENCE IN CRIMINAL CASES. [CHAP XIV. 

promise of a private detective, that he would make the prose- 
cution make it easier for the accused is not an inducement 
offered by a person in authority, within the meaning of the 
rule; * nor is a private detective, hunting up goods, acting in 
such official capacity that a confession obtained by him is 
one made to a person in authority.* The relation of parent 
and child does not of itself bring the parties within the rule, 
but the character of a confession made in such relation de- 
pends upon the authority exercised or the inducement held 
out.^* Thus, where the accused was twenty years of age, 
but his father still exercised his parental authority, and he 
used means to make his son confess, it was held that the case 
was reasonably within the rule, so as to render the confes- 
sion involuntary.^ But, where the stepfather of the accused 
advises him to make complaint against others alleged to be 
concerned in the crime, and that accused might be admitted 
as a state's witness, it was held to be advice, and not induce- 
ment, and that a confession made at the time was voluntary.* 
A confession made to a physician of influence, who was in 
active conference with the magistrate in regard to the prose- 
cution, in response to inducement held out by him, was held 
involuntary.^ Where the confession was made to a physician 
called to see the accused, w4io told her that she had better tell 
all that she knew, the confession was held inadmissible.^ 
The fact that a confession is made to a friend of the defend- 
ant does not render it involuntary;"' nor the suggestion of a 

^ Early V. Com. 86 Va. 921, 11 ^People v. Burns, 2 Park. Crim. 

S. E. 795; Dumas v. State, 63 Ga. Rep. 34. 

600 ; Stone v. State, 105 Ala. 60, 17 5 Beggarly v. State, 8 Baxt. 520. 

So. 114. As to confession to physician, see 

^United States v. Stone, 8 Fed. also note in IS L.R.A.(N.S.) 855. 

232. SRex v. Kingston, 4 Car. & P. 

2a See note in IS L.R.A.fN.S.) 387. 

854. 7 Wilson v. State, 44 Tex. Crim. 

3 State V. Force, 69 Neb. 162, 95 Rep. 430, 71 S. W. 970 See also 

N. W. 42, 12 Am. Crim. Rep. 160. note in 18 L.R.A.(N.S.) 855. 



§§ 652b, 653] confessions. 1355 

friend that, if the accused would confess, the prosecution 
would probably help him, is not made in a relation, nor under 
such inducement, that it will render the confession inadmissi- 
ble.' 

§ 652b. Made in the presence of persons in authority. — 
Having in mind the rule that a confession made to a person 
in authority, under the influence of inducement, is generally 
excluded, it has often been held that a confession made in 
the presence of a person in authority, upon inducement of- 
fered by others, is involuntary, on the principle that such in- 
ducement receives the sanction of the persons who are pres- 
ent.^ 

Since, however, the mere fact that a confession is made 
in the presence of an officer is not of itself sufificient to ren- 
der the confession involuntary, it follows that the presence 
of an officer or person in authority, without some act or sanc- 
tion on the part of such person, does not render the confes- 
sion involuntary.^ 

§ 653. Condition of party confessing. — It should be re- 
rembered that the age, experience, intelligence, and constitu- 

^ State V. Caldwell, 50 La. Ann. ^People v. Owen, 154 Mich. 571, 

666, 41 L.R.A. 718, 69 Am. St. Rep. 21 L.R.A.(N.S.) 520, 118 N. W. 

465, 23 So. 869. 590; Jones v. State, 58 Miss. 349; 

^Reg. V. Jones, 49 J. P. 728; Com. v. Clark, 130 Pa. 641. IS Atl. 

Reg. V. Garner, 1 Den. C. C. 329, 3 9S8 ; State v. Patterson, 73 Mo. 695 ; 

New Sess. Cas. 329, Temple & M. State v. Armstrong, 203 Mo. 554, 

7, 2 Car. & K. 920, 18 L. J. Mag. 102 S. W. 503 ; State v. Church, 199 

Cas. N. S. 1, 12 Jur. 944, 3 Cox, C. Mo. 605, 98 S. W. 16; Pierce v. 

C. 175 ; People v. Silvers, 6 Cal. United States, 160 U. S. 355. 40 L. 

App. 69. 92 Pac. 506. See State v. ed. 454, 16 Sup. Ct. Rep. 321 ; State 

Kirby, 1 Strobh. L. 378; Reg. v. v. Cowan, 29 N. C. (7 Ired. L.) 

Laugher, 2 Car. & K. 225, 2 Cox, 239; United States v. Stone, 8 Fed. 

C. C. 134; Reg. v. Taylor, 8 Car. 232. See Reg. v. Parker. 8 Cox, C. 

& P. 733 ; Reg. v. Milieu, 3 Cox, C. C. 465 ; Reg. v. Zeigert, 10 Cox, C. 

C. 507. See Rex v. Pountncy, 7 C. 555. See Young v. Com. 8 BusIl 

Car. & P. 302. 366. 



1356 EVIDENCE IN CRIMINAL CASES. [CHAP XIV. 

tion, both physical and mental, of prisoners, are so various, 
and the power of performance so different in the different 
persons promising, that any rule will necessarily sometimes 
fail of meeting the needs of a case. The test is whether the 
accused was likely to view the promise as authoritative. And 
this test is to be determined by the standard of the person 
confessing.* 

§ 653a, Induced by hope or fear. — The ordinary 
phraseology of the courts, in defining the rule by which the 
voluntary or involuntary character of the confession is to 
be measured, is that it is involuntary where made through 
threats or fear or promise or hope, and this is so often re- 
iterated that it is almost crystalized into a fixed rule. Only 
two conditions are present when the four qualifying adjec- 
tives are used. Thus, if a threat is made it logically follows 
that the confession is induced by fear, for fear is the effect 
where the party making the threat has the present ability to 
carry it into execution. If a promise is made, it logically fol- 
lows that the confession is induced by hope ; for hope of benefit 
is the effect where the party holding it out has the present 
ability to carry it into effect. The question is more fully 
comprehended by stating that the confession is voluntary 
where it is not the result of any inducement. 

We have just considered confessions through threats and 
promises,^ and the following rulings illustrate the same prin- 
ciples as phrased by the words "hope or fear." ^ 

1 See supra, § 636. As to age, Morgan v. State, 120 Ga. 499, 48 

situation, and character of accused S. E. 238 ; Harding v. State, 54 Ind. 

making confession, see note in 18 359; State v. Castigno, 71 Kan. 851, 

L.R.A.(N.S.) 786. 80 Pac. 630; Brown v. Com. 20 Ky. 

1 Supra, § 646. L. Rep. 1552, 49 S. W. 545 ; Stat,' 

^Walker v. State, 52 Ala. 192; v. Michel, 111 La. 434, 35 So. 629; 

Dupree v. State, 148 Ala. 620, 42 People v. Foley, 64 Mich. 148, Z\ 

So. 1004; Runnels v. State, 28 Ark. N. W. 94; State v. Jones, 54 Mo. 

121; Roberts v. State, 75 Ga. 863; 478; State v. Armstrong, 203 Mo. 



§ 653a] CONFESSIONS. 1357 

In the case law it is evident that the court was not con- 
trolled as much by the surrounding circumstances, or the con- 
dition of the accused, as by the words and manner in which 
the hope was held out. Otherwise the decisions are in exact 
conflict. Thus, where an accused called a hotel proprietor 
to one side, saying that if he would let the case go he would 
give up the property, it was held voluntary, as not induced 
by any hope of benefit.^ But, where the accused said, "If you 
will take me out of jail, I'll turn up the money," the confes- 
sion was held to be involuntary.* In the first case, it ap- 
pears that the accused made the offer himself; and in the 
second case, it appears that the confession was drawn out by 
an offer on the part of the officer to whom it was made, to 
assist the defendant if the money could be found. And the 
latter case seems to support the rule that a confession ob- 
tained by a promise of favor is incompetent.^ The weight 
of authority is that any confession obtained by telling the ac- 

554, 102 S. W. 503; May v. State, 167, 15 S. E. 10; Peter v. State, 3 

38 Neb. 211, 56 N. W. 804; State How. (Miss.) 433; Hopt v. Utah, 

V. Haworth, 24 Utah, 398, 68 Pac. 110 U. S. 574, 28 L. eel. 262, 4 Su,x 

155; State v. Bohanon, 142 N. C. Ct. Rep. 202, 4 Am. Crim. Rep. 

695, 55 S. E. 797; Mitchell v. Com. 417; Bonner v. State, 55 Ala. 242 

33 Gratt. 845 ; Cornell v. State, See Griner v. State, 121 Ga. 614, 49 

104 Wis. 527, 80 N. W. 745; State S. E. 700; Hardin v. State, 66 Ark. 

V. Young, 67 N. J. L. 223, 51 Atl. 53, 48 S. W. 904. See State v. Mc- 

939; Gallagher v. State, — Tex. Laughlin, 44 Iowa, 82; Mill v. State, 

Crim. Rep. — , 24 S. W. 288; Smith 3 Ga. App. 414, 60 S. E. 4; Com. v. 

V. Com. 10 Gratt. 734; Sullins v. Sheehan, 163 Mass. 170, 39 N. E. 

State, 53 Ala. 474; Com. v. Ken- 791; Com. v. Wesley, 166 Mass. 248, 

ncdy, 135 Mass. 543 ; People v. Ken- 44 N. E. 228; Hills v. State, 61 Neb 

ncdy, 150 N. Y. 346, 70 Am. St. 589, 57 L.R.A. 155, 85 N. W. 836; 

Rep. 557, 54 N. E. 51 ; Basye v. State v. Bates, 25 Utah, 1, 69 Pac. 

State, 45 Neb. 261, 63 N. W. 811: 70. 

Warren v. State, 29 Tex. 369; Clay ^Leslie v. State, 35 Fla. 184, 17 

V. State. 15 Wyo. 42, 86 Pac. 17. So. 559. 

544; Parher v. State, 34 Ga. 262; ^ State v. Von Sachs. 30 La. Ann. 

State V. Grover, 96 Me. 363, 52 Atl. 942. See Lacey v. State, 53 Ala 

757, 12 Am. Crim. Rep. 128; Green 385. 

V. State. 88 Ga. 516, 30 Am. St. Rep. » Com. v. Chabbock, 1 Mass. 144. 



1358 EVIDENCE IN CRIMINAL CASES. [CHAP XIV. 

cnsed that he may be used as a state's witness renders the 
resulting confession involuntary.^ Where the accused is led 
to believe that his statement will have the effect to free him, 
such a powerful inducement is thus presented to his mind as 
to lead him to make it without regard to its truth or falsity, 
and hence it is involuntary.'' 

§ 654. Advice. — As to whether or not mere advice to 
an accused is sufficient to render the confession that follows 
involuntary seems to depend upon the fact that if, from the 
advice, the accused could gather some hope of benefit, by 
making the confession, it is held involuntary. Thus, under 
a statute making confessions involuntary when induced by 
another by the slightest hope of benefit, it was held that any 
advice to the accused under arrest, given by the officer, to the 
effect that if he knew anything he had better tell it, rendered 
the confession involuntary,^ and such expressions are gen- 
erally regarded as rendering the confession involuntary.^ As 
to admonitions to tell the truth, even where coupled with the 

^ State V. Johnson, 30 La. Ann. sion, see note in 18 L.R.A. (N.S.) 

881 ; Johnson v. State, 61 Ga. 305 ; 812. 

Reg. V. M'Hitgh, 7 Cox, C. C. 483. 2 j^^x v. Walkley, 6 Car. & P. 

See Thompson v. State, 19 Tex. 175; Rex v. Partridge, 7 Car. & P. 

App. 593. 551 ; Reg. v. Croydon, 2 Cox, C. C 

''Rutherford v. Com. 2 Mer. 67; Reg. v. Rose, 67 L. J. Q. B. N. 

(Ky.) 387; Shifflet v. Com. 14 S. 289, 18 Cox, C. C. 717, 78 L. T. 

Gratt. 652; State v. Phelps, 11 Vt. N. S. 119, 14 Times L. R. 213, 11 

116, 34 Am. Dec. 672; Clayton v. Am. Crim. Rep. 275; Reg. v. 

State, 31 Tex. Crim. Rep. 489, 21 Thompson [1893] 2 Q. B. 12, 62 L. 

S. W. 255 ; United States v. Kurtc, J. Mag. Cas. N. S. 93, 5 Reports, 

4 Cranch, C. C. 682, Fed. Cas. No. 392, 69 L. T. N. S. 22, 41 Week. 

15,547; Anderson v. State, 104 Ala. Rep. 525, 17 Cox, C. C. 641, 57 J. 

83, 16 So. 108. See State v. Car- P. 312, 8 Eng. Rul. Cas. 90, 9 

rick, 16 Nev. 120. Am. Crim. Rep. 269; Bram v. Unit- 

^Di.von V. State, 113 Ga. 1039, 39 ed States, 168 U. S. 532, 42 L. e4 

S. E. 846. 568, 18 Sup. Ct. Rep. 183. 10 Am. 

As to effect of advice and exhor- Crim. Rep. 547; Rex v. Thomas, 6 

tation on admissibility of confes- Car. & P. 353. 



§ 654] 



CONFESSIONS. 



1359 



statement that to tell the truth is best, it has been held in this 
country that the confession is voluntary;^ but in England the 
words, "You had better tell the truth," seem to have acquired 
a sort of technical meaning, importing a threat or a benefit.^ 
As anomalous as it may seem, the explanation is that, while 
the accused is advised to tell the truth, he supposes that what 
the authorities mean is that he is to say that he is guilty, and 
this, coupled with the statement that it would be better to 
tell the truth, furnishes the temptation to make an untrust- 
worthy statement, hence an involuntary confession.^ In this 
country, however, the weight of authority is that an induce- 
ment cannot be implied from the mere exhortation that it is 
better, or is best, to tell the truth,® nor, under the advice that 



estate V. Day, 55 Vt. 510, 4 Am. 
Crim. Rep. 104. 

* Reg. V. Jarvis, L. R. 1 C. C. 96. 

^Reg. V. Reeve, L. R. 1 C. C. 
362; Reg. v. Laugher, 2 Car. & K. 
225, 2 Cox, C. C. 134 ; Reg. v. Halts, 
49 L. T. N. S 780, 48 J. P. 248; 
Rex V. Griffin, Russ. & R. C. C. 
151 ; Reg. v. Cheverton, 2 Fost. & 
F. 833; Reg. v. Doherty, 13 Cox, 
C. C 23 ; Reg. v. Fennell, 14 Cox, 
C. C. 607, 50 L. J. Mag. Cas. N. S. 
126, L. R. 7 Q. B. Div. 147, 44 L. 
T. N. S. 687, 29 Week. Rep. 742, 45 
J. P. 663; Reg. v. Collier, 3 Cox, 
C. C. 57; State v. Jackson. 3 Penn 
(Del.) 15, 50 Atl. 270; People v. 
Stewart, Ih Mich. 21, 42 N. W. 662: 
Com. V. Preece, 140 Mass. 276, 5 
N. E. 494, 5 Am. Crim. Rep. 107 

^ Kelly V. Stale, 72 Ala. 244: 
Washington v. State, 106 Ala. 58, 
17 So. 546; Hardy v. United States, 
3 App. D. C. 35 ; State v. Kornstett, 
62 Kan. 221, 61 Pac. 805; State v. 
Staley, 14 Minn. 105, Gil. 75 ; State 
V. Anderson, 96 Mo. 241, 9 S. W. 



636; Huffman v. State, 130 Ala. 89, 
30 So. 394; Kelly v. State, 72 Ala. 
244; State v. Meekins, 41 La. Ann. 
543, 6 So. 822; State v. Patterson, 
72, Mo. 695; State v. Hopkirk, 84 
Mo. 278; Heldt v. State, 20 Neb. 
496, 57 Am. Rep. 835, 30 N. W. 
626; State v. Leuth, S Ohio C. C. 
94, 3 Ohio C. D. 48; Lucasey v. 
United States, 2 Hayw. & H. 86, 
Fed. Cas. No. 8,588a; Sparf v. 
United States, 156 U. S. 51, 39 L. 
ed. 343, 15 Sup. Ct. Rep. 273, 10 
Am. Crim. Rep. 168; King v. State, 
40 Ala. 314; Manll v. State, 95 
Ala. 1, 11 So. 218; Nichobon v. 
State, 38 Md. 140; State v. Holden, 
42 Minn. 350, 44 N. W. 123 ; Fonts 
V. State, 8 Ohio St. 98; State v. 
Habih, 18 R. I. 558, 30 Atl. 462; 
State V. Gossett, 9 Rich. L. 428; 
Hints V. State, 125 Wis. 405, 104 
N. W. 110; Rossczyniala v. State, 
125 Wis. 414, 104 N. W 113; Can- 
nada v. State, 29 Tex. App. 537, 16 
S. W. 341. 



1360 EVIDENCE IN CRIMINAL CASES. [CHAP XIV. 

if the accused is guilty a confession could not put him in 
any worse condition, and that he had better tell the truth at 
all times.''^ Mere advice to confess if guilty, and, if not, to 
stand firm,® does not render the confession involuntary. Thus, 
where an officer said that he would help the accused all he 
could, and that, if the latter was not guilty, he would try to 
get a compromise, and then adding, "If you did do it, it might 
be best for you to say so, but, if you did not, stick to it that 
you did not," — such advice did not render the confession in- 
voluntary.^ 

§ 655. Expectation of compromise or mitigation. — 
There is no difficulty in holding that confessions, following 
direct positive promises not to prosecute, or to allow the ac- 
cused to turn state's evidence, are involuntary and inadmis- 
sible, but difficulties arise when the promise is rather in the 
nature of an opinion, and the punishment is to be lessened 
rather than to cease. Where a person commits a felony, and, 
under persuasion of the officer that if he should confess it 
would go lighter with him, as he might get a jail sentence in- 
stead of a penitentiary sentence, there is a strong inducement 
to make a confession in hope of the benefit inspired by the 

Tearsall v. Com. 29 Ky. L. Rep. 117; Maftheivs v. State, 9 Lea, 128, 

222, 92 S. W. 5S9; State v. Hannan, 42 Am. Rep. 667; Ulricli v. People, 

3 Harr. (Del.) 567; Anderson v. 39 Mich. 245; Haivkins v. State, 7 

State, — Tex. Crim. Rep. — , 54 Mo. 190; State v. Hagan, 54 Mo. 

S. W. 581. But see Watts v. State, 192. 

99 Md. 30, 57 Atl. 542 supra, III, ^ Meinaka v. State, 55 Ala. 47; 

f, 2; Aliller v. State. 94 Ga. 1, 21 Aaron v. State, 37 Ala. 106; Aaron 

S. E. 128, supra, VII. a; State v. v. State, 39 Ala. 75; Dodson v. 

Albert, 50 La. Ann. 481, 23 So. State, 86 Ala. 60, 5 So. 485. See 

609, supra, III, e; supra, § 647; State v. Whitfield, 70 N. C. 356; 

post, § 674; Fonts v. State, 8 Ohio State v. Kornstett, 62 Kan. 221, 61 

St. 98; Young v. Com. 8 Bush, 366; Pac. 805. 

Stafford v. State, 55 Ga. 592; State ^ Dotson v. State, 88 Ala. 208 7 

V. Wl'.itf.eld, 70 N. C. 356; State v. So. 259. 
Crank, 2 Bail. L. 66, 23 Am. Dec. 



§ 656] CONFESSIONS. 1361 

lighter punishment promised. Such a mitigation has been 
held sufficient to render the confession invokintary.^ But 
where the promise is a matter of opinion only, it does not 
render the confession involuntary. Thus, where several were 
arrested, and the jailer said to one of them that "if the com- 
monwealth should use any of them as witnesses it would pre- 
fer her to either of the others," this was held to be an expres- 
sion of opinion, and not such a promise of benefit as to make 
the resulting confession involuntary.^ So, a voluntary offer 
made by the accused, to return the goods if there is no prose- 
cution, does not render the confession attending the offer in- 
voluntary.^ 

§ 656. Of an accomplice. — It is justly held that the 
prosecution, by calling an accomplice as a witness against 
his associates, is precluded from subsequently using his ad- 
missions on the witness stand to procure his conviction in a 
prosecution instituted against himself.^ In such a case the 
prosecution has tendered a price for the testimony, and it 
ought to be held to its agreement, where the accomplice actu- 
ally testifies, for in those cases where he shirks, or breaks his 

^ Supra, § 646e; State v. Jordan, confession, see also note in IS 

87 Iowa, 86, 54 N. W. 63; People v. L.R.A.(N.S.) 820. 
Johnson, 41 Cal. 453; State v. Jav, '^ Fife v. Com. 29 Pa. 429. See 

116 Iowa, 264, 89 N. W. 1070, 12 Coin. v. Tuckerman, 10 Gray. 173; 

Am. Crim. Rep. 93; Com. v. Cur- State v. Bradford, 156 Mo. 91, 50 

fis, 97 Mass. 577; State v. Smith. S. W. 898. 

72 Miss. 420, 18 So. 482 ; Harvey v. ^ State v. Emerson, 48 Iowa, 172. 

State, — Miss. — , 20 So. 837; Stale See Wharton, Ev. § 1090; Murdoch 

V. Drake, 113 N. C. 624, 18 S. E. v. State, 68 Ala. 567. 
166; Smith v. State, 125 Ga. 252, 54 i United States v. Lee, 4 McLean. 

S. E. 190; Maxwell v. State, -~ 103, Fed. Cas. No. 15,.S88; Jackson 

Miss. — , 40 So. 615; Johnson v. v. State, 56 Miss. 311. See, how- 

State, 89 Miss. 773, 42 So. 606; ever, Com. v. Woodside, 105 Mass. 

Sorenson v. United States, 74 C. 594; Com. v. Dabney, 1 Rob. (Va.) 

C A. 468. 143 Fed. 820. As to ef- 696, 40 Am. Dec. 717. 
feet of promises on admissibility of 
Crim. Ev. Vol. II.— 86. 



1362 EVIDENCE IN CRIMINAL CASES. [CHAP XIV. 

agreement, it is held that he cannot claim protection or im- 
munity from punishment.^ But, where a confession had been 
made with reasonable expectation that the accused would be- 
come a crown witness, as a return for his expected services, 
such confession is not admissible where the accused refuses to 
keep his contract.^ 

§ 657. Collateral inducements to confess. — In exclud- 
ing the inducement of collateral benefit, as one of the grounds 
that does not render a confession involuntary, courts draw an 
arbitrary line. On principles of logic, if a confession is ex- 
cluded because of a direct benefit which tempts the accused to 
speak falsely, it is irresistible that the collateral benefits prom- 
ised in many instances might outweigh the direct benefit. This 
distinction is shown in a case in Illinois. There the trial court 
had instructed the jury that if the confessions were obtained 
from the accused on the promise of an officer, of some collater- 
al benefit, and such promise was carried into eft'ect, and the ac- 
cused benefit collaterally, still, if no threat or promise had been 
made in reference to the crime charged, the confession was ad- 
missible. The supreme court held such instruction erroneous, 
and said it should be qualified, as it seemed to have been as 
originally adopted by the courts from Mr. Greenleaf, wliere 
the correct instruction is contained in the follov^ang words : 
The confession "will be received though it were induced . . . 
by a promise of some collateral benefit or boon, no hope of 
favor being held out in respect to the criminal charge against 

^ State V. Moran, IS Or. 262, 14 ^ Reg. v. Gillis, 11 Cox, C. C. 69, 

Pac. 419; Com v. Knapp, 10 Pick. 14 Week. Rep. 845. See Lauder- 

^7%,20 Am. Dtc. SZ^; Moore's Case, dale v. State, 31 Tex. Crim. Rep. 

2 Lewin, C. C. Z7 ; R. v. Hohham, 46, Z7 Am. St. Rep. 7S8, 19 S. W. 

Stafford Spring Assizes 1843, 2 679; Neeley v. State, 27 Tex. App. 

Russell, Crimes, by Greaves. 958; 324, 11 S. W. 276. 
R. V. Hokes, Stafford Spring As- 
sizes 1837, 2 Russell, Crimes, by 
Greaves, 958 (d.) 



657] 



CONFESSIONS. 



1363 



him, . . . provided that there is no reason to suppose 
that the inducement held out was calculated to produce any 
untrue confession, which is the main point to be consid- 
ered." ^ But, notwithstanding this distinction, the rule is es- 
tablished that the inducement held out must go directly to 
the benefit of the accused, by way of his personal escape from 
punishment.^ 



^Shields v. People, 132 111. App. 
109. See Greenl. Ev. § 229. 

2 Supra, § 646e, note 7 ; Com. v. 
Knapp, 9 Pick. 496, 20 Am. Dec. 
491 (not excluded where it was 
supposed that the promise would 
benefit a child or relative) ; State 
V. Grant, 22 Me. 171 (not excluded 
because made to "save his broth- 
er") ; Shifflct V. Com. 14 Gratt. 652 
(not excluded because it might 
benefit accused's mother) ; State v. 
Wentxvorth, Z7 N. H. 196 (not ex- 
cluded by promise of reward) ; Mc- 
intosh V. State, 52 Ala. 355 (not 
excluded by promise of reward) ; 
McKinney v. State, 134 Ala. 134, 
32 So. 726 (not excluded by prom- 
ise of reward) ; Stone v. State, 105 
Ala. 60, 17 So. 114 (not excluded 
by promise of employment) ; Page 
V. Com. 27 Gratt. 954. 

But in Com. v. Wilson, 186 Pa. 
1, 40 Atl. 283, 11 Am. Grim. Rep. 
261, where a detective told accused 
that if he could show hardihood 
and nerve he could be admitted to 
a band of robbers which made large 
sums of money by robbing banks 
and railway trains, and the accused 
confessed crimes to show his quali- 
fications, the court held that the 
confession was made for a distinct 
purpose; namely, to satisfy the sup- 
posed band that he was capable of 



crimes as great, and possessed of 
a record as black, as they, and that 
he could be trusted by them, and 
there was a temptation to represent 
himself worse than he really was, 
but that the confession should go 
to the jury to determine his credi- 
bility. 

See also Rex v. Todd, 13 Mani- 
toba L. Rep. 364; Brewer v. State, 
72 Ark. 145, 78 S. W. 773 i, promise 
on the part of oflScers that they 
would "stay with him" does not ex- 
clude) ; State v. Hopkirk, 84 Mo. 
278 (statement to the accused that 
if he could get out on bond he 
could be employed to drive a bus 
does not exclude) ; State v. Hardee, 
83 N. C. 619 (promise to accused, 
by a woman, that if he would tell 
about the burning she would mar- 
ry him, does not exclude) ; State v. 
Tatro, 50 Vt. 483, 3 Am. Grim. Rep. 
165 (promise to the accused, who 
was in solitary confinement, that he 
might go below with the other 
prisoners, does not exclude) ; Rex 
V. Lloyd, 6 Gar. & P. 393 (promise 
by an officer, that he will allow 
accused to see his wife if he will 
tell where the stolen property is, 
does not exclude). 

But see Rex v. Sexton, cited in 
note to Reg. v. Moore. 2 Bennet & 
H. Lead. Grim. Gas. 581 ; Hunt v. 



1364 



EVIDENCE IN CRIMINAL CASES. 



[CHAP XIV. 



§ 658. Issue is vi^hether the influence applied was such 
as to induce a false statement. — The distinct issue in every 
case is, Was there a causal relation between the inducement 
relating to the crime charged and the confession as a result? 
If such relation did not exist, then the confession is admis- 
sible. It is generally assumed that the inducement is likely 
to produce a false confession; and this finds expression from 
the courts in such phrases as, "Here was an inducement suffi- 
cient to exclude," or, "There being no inducement, the con- 
fession is admissible." Hence the settled rule that where the 
confession proved against the accused is without inducement 
it is always admissible,^ and in England, Keating, J., expresses 



State, 135 Ala. 1, 33 So. 329 (prom- 
ise of protection against wrath of 
codefendants does not exclude). 

1 This rule is so universal that a 
citation of an earlier and a later 
ruling in each state illustrates its 
adherence to and acceptance by the 
courts. United States v. Charles, 2 
Cranch, C. C. 76, Fed. Cas. No. 
14.786; Bram v. United States, 168 
U. S. 532, 42 L. ed. 568, 18 Sup. 
Ct. Rep. 183, 10 Am. Crim. Rep. 
547; Harrold v. Oklahoma, 94 C. C. 
A. 415, 169 Fed. 47, 17 A. & E. Ann. 
Cas. 868; Aiken v. State, 35 Ala. 
399; Gregg v. State, 106 La. 44, 17 
So. 321; Love v. State, 22 Ark. 336; 
Adcock V. State, yz Ark. 625, 83 S. 
W. 318; People v. Jim Ti. 32 Cal. 
60; People v. Siemsen, 153 Cal. 387, 
95 Pac. 863; Beery v. United States, 
2 Colo. 186; State v. Potter, 18 
Conn. 166; Simon v. State, 5 Fla. 
285; Green v. State, 88 Ga. 516, 30 
Am. St. Rep. 167, IS S. E. 10; 
Griner v. State. 121 Ga. 614, 49 S. 
E. 700; Miller v. People, 39 III. 457; 
Ginn v. State, 161 Ind. 292, 68 N. 



E. 294; State v. Neuhatier, 145 
Iowa, 337, 124 N. W. 312 ; State v. 
Kornstett, 62 Kan. 221, 61 Pac. 805 ; 
Carpenter v. Com. 29 Ky. L. Rep. 
107,' 92 S. W. 552; State v. Hamil- 
ton, 42 La. Ann. 1204, 8 So. 304; 
State V. Gianfala, 113 La. 463, 37 
So. 30; State v. Grover, 96 Me. 363. 
52 Atl. 757, 12 Am. Crim. Rep. 128; 
Lozve V. State, 111 Md. 1, 24 L.R.A. 
(N.S.) 439, 73 Atl. 637, 18 A. & E. 
Ann. Cas. 744; Com. v. Tnckerman. 
10 Gray, 173 ; Com. v. Preece, 140 
Mass. 276, 5 N. E. 494, 5 Am. Crim. 
Rep. 107; Flagg v. People, 40 Mich. 
706, 3 Am. Crim. Rep. 70; Serpen- 
tine V. State, 1 How. (Miss.) 256; 
Amnions v. State, 80 Miss. 592, 
18 L.R.A. (N.S.) 768, 92 Am. St. 
Rep. 607, 32 So. 9, 12 Am. Crim. 
Rep. 82 ; State v. Brockman, 46 Mo. 
566; State v. Spaugh, 200 Mo. 571, 
98 S. W. 55; Territory v. McClin, 
1 Mont. 394 ; State v. Berberick, 38 
Mont. 423, 100 Pac. 209, 16 A. & E. 
Ann. Cas. 1077; Taylor v. State, 37 
Neb. 788, 56 N. W. 623; State v. 
George, 50 N. C. (5 Jones, L.) 233; 



§ 658] 



CONFESSIONS. 



1365 



the rule in the following words : "In my time it used to be held 
that a mere caution given by a person in authority would 
exclude an admission, but since there has been a return to 
doctrines more in accordance with the common-sense view. 
The real question is whether there has been any threat or 
promise of such a nature that the prisoner would be likely to 
tell an untruth, from the fear of the threat, or hope of profit 
from the promise." ^ And where a prisoner was taken before 
a magistrate on a charge of forgery, and the prosecutor said, 
in the hearing of the prisoner, that he considered him as the 
tool of G., and the magistrate then told the prisoner to be sure 
to tell the truth, and upon this the prisoner made a statement, 
this was held receivable.^ The same conclusion was reached 



State V. Daniels, 134 N. C. 641, 46 
S. E. 743 ; Heddendorf v. State, 85 
Neb. 747, 124 N. W. 150; Roesel 
V. State, 62 N. J. L. 216. 41 Atl. 
408; People v. Wentc. 37 N. Y. 303; 
People V. Rogers, 192 N. Y. 331, 85 
N. E. 135, 15 A. & E. Ann. Cas. 
177; Spears v. State, 2 Ohio St. 
583; Wade v. State. 2 Ohio C. C. 
N. S. 189, 25 Ohio C. C. 279; Fife 
V. Com. 29 Pa. 429; Com. v. Willis, 
223 Pa. 576, 72 Atl. 857; State v. 
Kirby, 1 Strobh. L. 155; State v. 
Perry, 74 S. C. 551, 54 S. E. 764; 
Deathridge v. State, 1 Sneed, 75; 
Allen V. State, 12 Tex. App. 190; 
Sowers v. State, 55 Tex. Crim. Rep. 
113, 113 S. W. 148; State v. Phelps, 
11 Vt. 116, 34 Am. Dec. 672; Miller 
V. State, 25 Wis. 384; Anderson v. 
State, 133 Wis. 601, 114 N. W. 112; 
State V. Poole, 42 Wash. 192, 84 
Pac. 727; Home v. State, 12 Wyo. 
80. 73 Pac. 705. See Rex v. Der- 
rington, 2 Car. & P. 418; State v. 
Carson, 36 S. C. 524, 15 S. E. 588. 
If the confession is involuntary, 



it is equally inadmissible, if offered 
merely to impeach the accused, 
where it is offered as a confession. 
People V. Yeaton, 75 Cal. 415, 17 
Pac. 544. 

2 Reg. V. Reason, 12 Cox, C. C. 
228; Reg. v. Dingley, 1 Car. & K. 
637; Fecj. v. Jones (1871) 12 Cox, 
C. C. 241, 27 L. T. N. S. 241 ; Com. 
V. Achert, 133 Mass. 402; People v. 
McGloin, 1 N. Y. Crim. Rep. 105, 
154; State v. Simon, 50 Mo. 370; 
State V. Vaigneiir, 5 Rich. L. 391; 
Merritt v. State, 59 Ala. 47 ; Sylves- 
ter V. State, 71 Ala. 17; Wilson v. 
State, 3 Heisk. 232; Rice v. State, 
47 Ala. 38; Levy v. State, 49 Ala. 
390; State v. Alphonse, 34 La. Ann. 
9; State v. Davis, 34 La. Ann. 351; 
State V. Revells, 34 La. Ann. 381, 
44 Am. Rep. 436; State v. Platte, 
34 La. Ann. 1061. 

3 Rex V. Court, 7 Car. & P. 486 ; 
Rex V. Thomas, 7 Car. & P. 345; 
Com. V. Morey, 1 Grav, 461 ; State 
V. Freeman, 12 Ind. 100. 



1366 EVIDENCE IN CRIMINAL CASES. [CHAP XIV. 

where the confession was the result of friendly advice, though 
the person advising was a stockholder in a corporation de- 
frauded by the defendant.* 

§ 659. Confessions made under assurances of secrecy 
are admissible. — Assurances that the confession would not 
be disclosed, if not made by a person in authority in such a 
way as to lead to a false statement, do not exclude a confes- 
sion they induced, such assurances being likely rather to elicit 
than to suppress truth ; ^ and on the same reasoning, where 
the defendant confessed his guilt to a fellow prisoner on be- 
ing assured by the latter that one criminal cannot testify 
against another, it was held that the confession was admis- 
sible.^ 

§ 660. Spiritual inducements. — The inducement must 
refer to a temporal benefit, for hopes which are referable only 
to a future state are not within the principle which excludes 
confessions obtained by improper influence.^ Hence, the fact 
that the confession was made in response to spiritual exhorta- 
tions, even by a clergyman or priest, does not exclude them.^ 

* Com. V. Tiickerman, 10 Gray, 186, Car. Crim. Law, 51 ; Com. \: 
173. See also Com. v. Whittemorc, Drake, 15 Mass. 161; Slate v. Bas- 
il Gray, 201; Hopt v. Utah, 110 U. tick, 4 Harr. (Del.) 564; Matthezvs 
S. 574, 28 L. ed. 262, 4 Sup. Ct. v. State, 9 Lea, 128, 42 Am. Rep. 
Rep. 202, 4 Am. Crim. Rep. 417; 637; Rex v. Gilham, I Moody, C. 
Com. V. Stiirtivant, 117 Mass. 122, C. 219; Com. v. Goodzuin, 186 Pa. 
19 Am. Rep. 401. 218, 65 Am. St. Rep. 852, 40 Atl. 

^Rex V.Thomas, 7 Car. &F. 345; 412, 11 Am. Crim. Rep. 271; Joy, 

Com. V. Knapp, 9 Pick. 496, 20 Am. Confessions, 51. 

Dec. 491; State v. Darnell, Houst. ^ Reg. v. Dingley, I Car. & K. 

Crim. Rep. (Del.) 321; Dumas v. 637; Rex v. Gilham, 1 Moody, C. 

State, 63 Ga. 600. Though see C. 186, Car. Crim. Law, 51; as ex- 

Mtirphy v. State, 63 Ala. 1. plained in Joy, Confessions, 186. 

2 State V. Mitchell, 61 N. C. See, however, Reg. v. Griffin, 6 Cox, 

(Phill. L.) 447. C. C. 219; supra, § 507; Reg. v. 

"^Rex V. Gilham, 1 Moody, C. C. Sleeman, 6 Cox, C. C. 245, Dears. 



§ 661] CONFESSIONS. 1367 

§ 661. Under duress. — Some confusion has arisen 
through the use of the word "duress" as the equivalent of the 
words imprisonment or personal restraint. Duress, in law, 
means the compulsion or restraint by which a person is ille- 
gally forced to do or forbear some act, either through actual 
imprisonment or physical violence or threatened violence, 
called duress per minas. 

The violence or threats must be such as to inspire a person 
of ordinary firmness with the fear of serious injury to his 
person, reputation, or fortune, and, when exercised upon the 
wife, husband, ascendants, or descendants of such person, 
may constitute duress of him.* 

It will not be contended that a confession under such du- 
ress is otherwise than involuntary and inadmissible. But, not- 
withstanding, text writers and courts often say in terms, that 
confessions under duress are voluntary. Hence, the conclu- 
sion is that where the word is loosely used, in speaking of 
confessions, it has no other or stronger meaning than impris- 
onment or personal restraint, for the purpose of detention and 
safe-keeping. And when it is said, in this connection, that 
a confession is made under duress, it is meant custody, im- 
prisonment, or necessary personal restraint only. 

When a party is compelled by duress to make a self disserv- 
ing statement, this statement cannot be put in evidence against 
him.^ Legal imprisonment, however, does not operate to ex- 

C. C. 249, 2 C. L. R. 129, 23 L. J. 78 Ga. 490, 3 S. E. 768, and note in 

Mag. Cas. N. S. 19, 17 Jur. 1082, 18 L.R.A.(N.S.) 795, as to effect of 

2 Week. Rep. 97; Ga. Grim. Code, duress on admissibility of confes- 

1895. § 1007. sion. 

1 Webster's New Int. Diet. Du- ^ Stock fleth v. De Tastet, 4 

ress (3) ; First Nat. Bank v. Sar- Campb. 11, 2 Rose, 282, 15 Revised 

gent, 65 Neb. 594, 59 L.R.A. 296, Rep. 720; Robson v. Alexander, 1 

91 N. W. 595 ; Darling v. Mines, Moore, C. P. 448 ; Tilley v. Damon, 

5 Ind. App. 319, 32 N. E. 109; 11 Cusb. 247; Foss v. Ilildreth, 10 

Brown v. Pierce, 7 Wall. 214, 19 L. Allen, 76; Speer v. State, 4 Tex. 

ed. 136. See also McCoy v. State, App. 474. See supra, § 646; State 



1368 EVIDENCE IN CRIMINAL CASES. [CIIAP XIV. 

elude a confession made during its continuance when no 
threats or promises are used.^ Thus, when a prisoner, after 
his arrest, upon being interrogated why he had killed his wife, 
replied, "Because I loved her;" and said further, "I killed 
her because she loved another better than me;" and also said 
to a fellow prisoner in jail, that he had killed her, but if it 
was to do again he would not do it ; it was held that there was 
nothing in the circumstances under which these confessions 
were made to render them inadmissible.* 

A confession is not obtained by duress where the accused 
makes it in response to the sheriff's question as to whether 
or not he remembered a certain name; nor in a subsequent 
conversation in which accused told the sheriff that he would 
plead guilty, to which the sheriff replied that in that event he 
would speak to the judge and get the defendant off as easily 
as possible; ^ nor where the magistrate required the accused to 
enter a plea, since accused could plead either guilty or not 
guilty, as he might elect ; ^ nor where the confession was made 
in the presence of the prosecutrix's father, who was excited, 
and who made threats against accused ; ' nor where accused 
made a confession when he was in the room next to that in 
which the inquest was being held, and accused was in the pres- 

V. Patterson, 72, Mo. 695; Balbo v 646, 21 Am. Rep. 493, 1 Am. Crim. 

People, 80 N. Y. 484. Rep. 182. 

^Com. V. Cliff ee, 108 Mass. 285; Contra, Day v. State, 63 Ga. 667; 

People V. Rogers, 18 N. Y. 9, 72 supra, § 315; post, § 796. 

Am. Dec. 484; Hartung v. People, ^ Bush v. Com. 13 Ky. L, Reo. 

4 Park. Crim. Rep. 324; Com. v. 425, 17 S. W. 330; State v. Free- 

Mosler, 4 Pa. 264; Stephen v. State, man, 1 Speers, L. 57. 

11 Ga. 225; Meinaka v. State, 55 ^People v. Warner, 104 Mich. 

Ala. 47; Redd v. State, 68 Ala. 492; Z2>7, 62 N. W. 405. 

Spicer v. State, 69 Ala. 159; Jack- ^ State v. Briggs, 68 Iowa, 416, 27 

son V. State, 69 Ala. 251 ; State v. N. W. 358. 

Guy, 69 Mo. 430; Austin v. State, ''People v. Rich, 133 Mich. 14, 94 

14 Ark. 556; supra, §§ 315, 556. 557, N. W. 375. 
647, 649; State v. Graham. 74 N. C. 



662] 



CONFESSIONS. 



1369 



ence of a dozen people, including his mother.' But, where 
the prosecutrix shut up the accused in a smokehouse, and 
said to her. "Now I reckon you will tell me something about 
burning the house. I believe you know all about it," the con- 
fession was held involuntary, as having been induced by du- 
ress, it having created a hope in the mind of accused that she 
would be released if she confessed, and, if she did not, that 
her imprisonment would be continued.' 

It is to be observed that, when duress is applied, the burden 
of proof is on the prosecution, to show that the accused was 
not influenced by it to make his confession.^" 

§ 662. When in custody. — A confession is admissible 
when voluntarily made to a public officer, even though the 
prisoner be in custody of such officer, unless the confession be 
in some sense elicited by threats or promises.^ 



8 State V. Efler, 85 N. C. 585. 

But, in a case in South Carolina, 
the court seems to have extended 
the rule beyond reasonable bounds. 
In tlf&t case a number of citizens 
had made and passed resolution? 
charging accused with a crime. 
They then prepared a letter, which 
the presenter asked him to sign, 
saying that he thought it would be 
best to sign it, and if accused did 
sign it the presenter thought the 
whole matter would be dropped, 
the accused saying he signed it to 
protect his family. State v. Carroll. 
30 S. C. 85, 14 Am. St. ^ep. 883, 
8 S. E. 433. Here there was evi- 
dent compulsion, and the induce- 
ment that the matter would be 
dropped and punishment avoided. 

8 Hoober v. State, 81 Ala. 51, 1 
So. 574. 

1° Young v. State, 68 Ala. 569. 



^Rex V. Wild, 1 Moody, C. C. 
452; Rex v. Thornton, 1 Moody. 
C. C. 27; Rex v. Gibney, Jebb, C. 
C. 15; Rex v. Upchtirch. 1 Moody, 
C. C. 465; Reg. v. Johnston, 15 Ir. 
C. L. Rep. 60 ; Reg. v. Kerr, 8 Car. 
& P. 179; Rex v. Rees, 7 Car. & 
P. 569; Rex v. Bartlctt, 7 Car. & 
P. 832; Rex v. Ellis, Ryan & M. 
432. See Reg. v. Mick, 3 Post. & 
F. 822; Reg. v. Bodkin, 9 Cox, C. 
C. 403 ; R. V. Devlin, 2 Craw. & D. 
C. C. (Ir.) 152; Murphy v. People. 
63 N. Y. 590; Balbo v. People, 80 
N. Y. 484; Cox v. People. 80 N. Y. 
500; Com. v. Harman, 4 Pa. 269; 
State V. Guy. 69 Mo. 430; Jones v. 
State, 58 Miss. 349. See People v. 
Wentz, 37 N. Y. 303; Young v. 
Com. 8 Bush, 366; Reg. v. Chcver- 
ton, 2 Post. & P. 833; Hilhurn v. 
State. 121 Ga. 344, 49 S. E. 318; 
State V. Lewis, 112 La. 872, 36 So. 



1370 



EVIDENCE IN CRIMINAL CASES. [CHAP XIV. 



§ 663. In answer to questions assuming guilt. — The ac- 
cused's confession will not be rejected as evidence merely be- 
cause it was made in answer to a question which assumed his 
guilt.^ Thus, where the officer who committed the prisoner 
on a charge of murder asked "whether, if it was to do again, 
he would do it," and the reply was, "Yes sir-ree, Bob;" it 
was held that both the question and answer were admissible 
in evidence, as well as the fact that, in making the reply, the 
prisoner's "manner was short." ^ From the reply made, it 
is seen that the accused was defiant, and could have been in 
no manner influenced to his detriment by the question. On the 



788; Com. v. Chance, 174 Mass. 24S, 
75 Am. St. Rep. 306, 54 N. E. 551; 
People V. Parsons, 105 Mich. 177, 
63 N. W. 69; State v. Flemming, 
133 N. C. 688, 41 S. E. 549. See 
Com. V. Goodwin, 186 Pa. 218, 65 
Am. St. Rep. 852, 40 Atl. 412. 11 
Am. Crim. Rep. 271 ; Clay v. State, 
15 Wyo. 42, 86 Pac. 17. 544; Ivey 
V. State, 4 Ga. App. 828, 62 S. E. 
565 ; State v. Pamelia, 122 La. 207. 
47 So. 508; People v. Owen. 154 
Mich. 571, 21 L.R.A.(N.S.) 520, 113 
N. W. 590; State v. Wooley, 215 
Mo. 620. 115 S. W. 417; State v. 
Brooks, 220 Mo. 74. 119 S. W. 353; 
Tyner v. United States. 12 Okla. 
Crim. Rep. 689, 103 Pac. 1057; 
Crosby v. State, 93 Ark. 156, 137 
Am. St. Rep. 80, 124 S. W. 781; 
Gilmore v. State, 3 Okla. Crim. Rep. 
434. 27 L.R.A.(N.S.) 151, 105 Pac. 
801; Sims v. State, 59 Fla. 38, 52 
So. 198; Toomer v. State, 112 Md. 
285. 76 Atl. 118; supra, § 651a. 

As to confessions made when ac- 
cused is under personal restraint, 
see note in 18 L.R.A.(N.S.) 795. 

"^ Rex V. Thornton, 1 Moody, C. 



C. 28; Rex v. Gibncy, Jebb, C. C. 
15; Cox V. People, 80 N. Y. 500; 
State V. Sanders, 84 N. C. 728; 
PhilHpps, Ev. 427; Miller v. State, 
40 Ala. 54 ; White v. State, 133 Ala. 
122, 22 So. 139; State v. Staley, 14 
Minn. 105, Gil. 75 ; State v. Barring- 
ton, 198 Mo. 23, 95 S. W. 235; 
Roesel v. State, 62 N. J. L. 216, 41 
Atl. 408; State v. Hand, 71 N. J. L. 
137, 58 Atl. 641 ; Com. v. Hamilton, 
Lewis. Crim. Law, 422, cited in 
1 Brightley's Dig. (Pa.) 972; Bir- 
kenfeld v. State, 104 Md. 253, 65 Atl. 
1; Austin v. State, 14 Ark. 556; 
State V. Tazzvell, 30 La. Ann. 884; 
State V. McGee, 36 La. Ann. 206; 
Carroll v. State, 23 Ala. 28, 58 Am. 
Dec. 282; McClain v. Com. 110 Pa. 
263, 1 Atl. 45 ; State v. Blodgett, 50 
Or. 329, 92 Pac. 820; State v. Tur- 
ner, 122 La. 371, 47 So. 685; People 
V. IVentz, 2,7 N. Y. 304; Grant v. 
State, 55 Ala. 201. As to confes- 
sions elicited by questions see note 
in 18 L.R.A.(N.S.) 799. 

2 Carroll v. State, 23 Ala. 28, 58 
Am. Dec. 282. 



§ 664] CONFESSIONS. 1371 

other hand, where an officer not only assumes guilt, in his 
question, but accompanies the questions by menaces, amount- 
ing to a demand that the prisoner must speak, this may render 
the confession involuntary.^ And this is true where the ques- 
tion is of such a character that it is calculated to entrap the 
accused in such a manner that he does not realize the effect 
of his answer.* 

§ 664. Under oath. — In the earlier cases, confessions 
under oath were generally excluded.^ The reason for this was 
that the "examination of the prisoner should be without oath, 
and, of the others, upon oath," ^ so that where the accused was 
examined on oath the confession was rejected, because of the 
illegal manner in which it was taken, and not merely because 
of the oath.^ But, when the disqualifications of the accused 
were removed, and he was allowed to become a witness in 
'his own behalf, at his own election the rule ceased when the 

^ State V. Auguste, SO La. Ann. ^ Reg. v. Scott, Dears. & B. C. 

488, 23 So. 612. See Kelly v. State, C. 47, 25 L. J. Mag. Cas. N. S. 

72 Ala. 244. 128, 2 Jur. N. S. 1096, 4 Week. 

^McClain v. Com. 110 Pa. 263, 1 Rep. 777, 7 Cox, C. C. 164; United 

Atl. 45. See Peck v. State, 147 Ala. States v. Graif, 14 Blatchf. 381, 

100, 41 So. 759. Fed. Cas. No. 15,244; Reg. v. 

1 Rex V. Wilson, Holt, N. P. 597, W heater, 2 Moody, C. C. 45, 2 

Richards, C. B. ; Rex v. Haworth, 4 Lewin, C. C. 157; Starkie, Ev. 11, 

Car. & P. 256, Parke, J. semble; 38. 

Rex V. Webb, 4 Car. & P. 564, Gar- See Steele v. State, 76 Miss. 387, 

row, B.; Rex v. Tubby, 5 Car. & P. 24 So. 910; State v. Glass, 50 Wis 

530, Vaughan, B.; Rex v. Lewis, 6 218, 36 Am. Rep. 845, 6 N. W. 500 

Car. & P. 162, Gnrney B. semble; People v. Gibbons, 43 Cal. 557 

Rex V. Rivers, 7 Car. & P. 177, Park, United States v. Duffy, 1 Cranch 

].;Reg.v.PVliee:ey,SCsir.8iF.250, C. C. 164, Fed. Cas. No. 14,998 

Alderson, B. ; Reg. v. IV heater, 2 United States v. Bascadore, 2 

Moody, C. C. 45, 2 Lewin, C. C. 157, Cranch, C. C. 30, Fed. Cas. No. 

semble; Joy, Confessions, 62. As to 14,536; Schoeffler v. State, 3 Wis. 

confessions under oath, see also 823. 
note in 18 L.R.A.(N.S.) 872. 

2Buller, N. P. 242. 



1372 



EVIDENCE IN CRIMINAL CASES. [CHAP XIV 



reason ceased. Hence, the mere administration of an oath, 
to the accused, Vv'ill not render the confession involuntary;^ 
nor the fact that the confession was made under oath, as a 
witness, or otherwise, in prior judicial proceedings, if no com- 
pulsion nor undue influence was used.^ Thus, voluntary ad- 
missions of an accused, given in evidence at a fire inquest, and 
reduced to writing, and signed by him, are admissible on trial 
for arson; ^ and so of a bankrupt's schedule of assets, signed 
by him, in bankruptcy proceedings.'^ Declarations, also, of 
the accused, though made as a witness before a committee of 
the house of commons, under compulsory process, were hold- 



* United States v. Graff, 14 
Blatchf. 381, Fed. Cas. No. 15,244; 
United States v. Brozvn, 40 Fed 
457; Corn. v. Wesley, 166 Mass. 
248, 44 N. E. 228; Com. v. Clark, 
130 Pa. 641, 18 Atl. 988; People v. 
Owen, 154 Mich. 571, 21 L.R.A. 
(N.S.) 520, 118 N. W. 590; Rex v. 
Tubby, 5 Car & P. 530; Jackson 
V. State, 56 Miss. 311; State v. 
Lyts, 25 Wash. 347, 65 Pac. 530; 
Salas V. State, 31 Tex. Crim. Rep. 
485, 21 S. W. 44. 

^Rex V. Ellis, Ryan & M. 432; 
Rex V. Thornton, 1 Moody, C. C. 
27; Reg. v. Garbett, 1 Den. C. C. 
236, 2 Car. & K. 474, 2 Cox, C. C. 
448; Reg. v. IV heater, 2 Moody, C. 
C. 45, 2 Lewin, C. C. 157; Reg. v. 
Goldshede, 1 Car. & K. 657; Rex 
V. Tubby, 5 Car. & P. 530; Com. v. 
King, 8 Gray, 501 ; Com. v. Rey- 
nolds, 122 Mass. 454; Hendrickson 
V. People, 10 N. Y. 13, 61 Am. Dec. 
721; Teachout v. People, 41 N. Y. 
7; People v. McGloin, 91 N. Y. 241, 
1 N. Y. Crim. Rep. 155 ; Anderson 
V. State, 26 Ind. 89; Alston v. State, 
41 Tex. 39. 



Contra ; Josephine v. State, 39 
Miss. 615; People v. Mitchell, 94 
Cal. 550, 29 Pac. 1106; Newton v. 
State, 21 Fla. 53; Dumas v. State, 
63 Ga. 600; Com. v. Wesley, 166 
Mass. 248, 44 N. E. 228; People v. 
Butler, 111 Mich. 483, 69 N. W. 
734; People v. Hendrickson, 8 
How. Pr. 404; Com. v. Clark, 130 
Pa. 641, 18 Atl. 988; Kirby v. State. 
23 Tex. App. 13, 5 S. W. 165; 
Dickerson V. State, 48 Wis. 288, 4 
N. W. 321. 

6 Com. V. Bradford, 126 Mass. 
42; post, § 665. 

See Reg. v. Coote, 9 Moore, P. 
C. C. N. S. 463, 42 L. J. P. C. N. 
S. 45, L. R. 4 P. C. 599, 29 L. T. 
N. S. Ill, 21 Week. Rep. 553. 12 
Cox, C. C. 557. 

"^Abbott V. People, 75 N. Y. 602; 
Reg. V. Wheater, 2 Moody, C. C. 
45, 2 Lewin, C. C. 157; Reg. v. 
Sloggett, Dears. & B. C. C. 656, 
7 Cox, C. C. 139, 25 L. J. Mag. 
Cas. N. S. 93, 2 Jiir. N. S. 764. 
4 Week. Rep. 487. 

See United States v. Prescott, 2 
Dill. 405, Fed. Cas. No. 16.085. 



§ 664] CONFESSIONS. 1373 

en by Abbott, Ch. J.,^ to be admissible afterwards against him 
upon an indictment for corruptly granting licenses to public 
houses. So, a statement made voluntarily, under oath, by a 
witness before a coroner's inquest, in answer to interrogatories 
there put to him, although he was at the time informed that 
he was suspected of the crime, has been held subsequently ad- 
missible when the accused was on trial for the homicide.^ But 
where two persons were arrested, placed in jail on a murder 
charge, and, while in custody, taken before the coroner's jury, 
and, without being informed that they were not compelled to 
testify, were sworn and examined as witnesses, not on their 
own motion but on motion of the coroner, with regard to the 
homicide and their connection with it, confessions or inculpa- 
tory statements elicited at such examination were held inad- 
missible against them.^" And where persons were subpoenaed 
as witnesses to appear before a coroner's jury engaged in in- 
vestigating the cause of the death of the deceased, and were 
duly sworn and testified, although they were suspected of the 
murder, even though they made no objection to testifying, 
and were not represented by counsel, nor warned that the state- 

^Re.v V. Merccron. 2 Starkie, Crim. Rep. 409; People v. Banker, 

366; Reg. v. Scott, 25 L. J. Mag. 2 Park. Crim. Rep. 26; People v. 

Cas. N. S. 128, 7 Cox, C. C. 164, McMahon, 2 Park. Crim. Rep. 663 ; 

Dears. & B. C. C. 47, 2 Jur. N. S. Snyder v. State, 59 Ind. 105 ; State 

1096, 4 Week. Rep. 777. v. Broughton, 29 N. C. (7 Ired. L.) 

See Reg. v. Hillani, 12 Co-x, C. C. 96, 45 Am. Dec. 507 ; State v. 

174; Reg. v. Widdop, L. R. 2 C. C. Vaignciir, 5 Rich. L. 391; Schocffler 

3, 42 L. J. Mag. Cas. N. S. 9, 27 v. State, 3 Wis. 823; Dickcrson v. 

L. T. N. S. 693, 21 Week. Rep. State, 48 Wis. 288, 4 N. W. 321. 
176, 12 Cox, C. C. 251; Roscoe, See Rex v. Lezvis, 6 Car. & P. 

Crim. Ev. 50. 161 ; Rex v. Davis, 6 Car. & P. 177; 

9 Teachout v. People, 41 N. Y. 7. Reg. v. Ozven, 9 Car. & P. 238 ; 

See Rex v. Haivorth, 4 Car. & People v. McMahon, 15 N. Y. 384; 

P. 254; Rex v. Tubby, 5 Car. & P. People v. Soto, 49 Cal. 69. 
530; Reg. v. Braynell, 4 Cox, C. C. ^<^ Adams v. State, 129 Ga. 248, 17 

402; State v. Gilman, 51 Me. 206; L.R.A.(N.S.) 468, 58 S. E. 822, 12 

Hendrickson v. People, 1 Park. A. & E. Ann. Cas. 158. 



1374 EVIDENCE IN CRIMINAL CASES. [CHAP XIV. 

ments might be used against them, nor that they were privi- 
leged to refuse to testify, it was held that on a subsequent trial 
for the homicide the statements and confessions elicited were 
not admissible.^^ But where a defendant, being mistaken for a 
witness, was partially examined upon oath, this was held not 
to vitiate a confession subsequently made by him after due 
caution from the magistrate.'^^ It is held, however, that when 
a party under charge of committing a particular crime, is 
called by the prosecution, and compelled to answer under oath 
as to such crime, on the trial of another party, his testimony 
is regarded as given under compulsion, and cannot afterwards 
be introduced against him when he is on trfal; and the same 
privilege is applied to all cases in which he is forced to an- 
swer under oath when charged with the crime as to which 
his confession is sought to be used against him.^^ And, when 
the defendant is in custody under charge of crime, and is then 
sworn and questioned by the examining magistrate, his an- 
swers thus compelled cannot afterwards be put in evidence 
against him.^* But the fact that the statement was made by 
the defendant on oath on a former trial, when he was exam- 
ined in his own behalf, does not exclude it, he having made it 
voluntarily, though under oath.^^ And where the accused, of 
his own choice, and after warning, takes an oath before the 
grand jury, such oath does not render a confession thereupon 
made, involuntary.-^^ 

" Tiittle V. People, 33 Colo. 243, is See State v. Witham, 72 Me. 

70 L.R.A. 33, 79 Pac. 1035, 3 A. & 531 ; People v. Arnold, 43 Mich. 

E. Ann. Cas. 513. 303, 38 Am. Rep. 182, 5 N. W. 385; 

See State v. Matthews, 66 N. C. State v. Eddings, 71 JMo. 545, 36 

106; supra, § 622c. Am. Rep. 496; State v. Jefferson, 

12 Rex V. Webb, 4 Car. & P. 564. 77 Mo. 136; Dumas v. State, 63 Ga. 

^^ Jackson v. State, 56 Miss. 311; 600; Mack v. State, 48 Wis. 271, 4 

People V. McMahon, 15 N. Y. 384; N. W. 449; State v. Glass, 50 Wis. 

1 Archbold, Crim. Pr. & PI. 218, 36 Am. Rep. 845, 6 N. W. 500; 

Pomeroy's ed. 386 ; post, § 668. People v. Kelley, 47 Cal. 125 ; supra, 

14 Post, §§ 668, 669; Com. v. Har- § 463. 

man, 4 Pa. 269. is Supra, § 622c; Jenkins v. State, 



§§ 665, 666] CONFESSIONS. 1375 

§ 665. Confession involuntary when answers are given 
under compulsion. — The privilege extends to all cases 
where the defendant can prove that the answers offered in 
evidence were given by him when examined as a witness in 
another suit, in which he claimed the protection of the court, 
and had still been illegally compelled to answer.^ Testimony 
so obtained is excluded, not, as it seems, because it may pos- 
sibly be untrue, but because the right of the witness to be si- 
lent has been infringed; and it is deemed expedient, on 
grounds of public policy, to uphold the broad legal maxim, 
that no man shall be forced to criminate himself.^ But if 
the witness is wrongfully compelled to answer, and he does 
answer, that does not render his evidence illegal as respects 
other parties. It is the witness's own affair, and another party 
cannot complain of it.^ 

§ 666. English practice on preliminary examination. — 

In England the procedure is regulated by the indictable of- 
fenses act 1848, 11 & 12 Vict. chap. 42, the criminal law 
amendment act 1867, 30 & 31 Vict. chap. 35, and the criminal 
evidence act 1898, 61 & 62 Vict. chap. 36. 

At common law a party accused of a crime cannot be re- 
quired to answer any questions which may expose him to pros- 

35 Fla. 737, 48 Am. St. Rep. 267, Week. Rep. 553, 12 Cox, C. C. 

18 So. 182; United State v. Kirk- 557. 

wood, 5 Utah, 123, 13 Pac. 234; 2 Taylor, Ev. § 822. 

Wisdom V. State, 42 Tex. Crim. See State v. Spier, 86 N. C. 600. 

Rep. 579, 61 S. W. 926; Giles v. ^ Reg. v. Kinglake, 11 Cox, C. C. 

State, 43 Tex. Crim. Rep. 561, 67 499, 22 L. T. N. S. 335, 18 Week. 

S. W. 411; Harshaw v. State, 94 Rep. 805; Reg. v. Coote, 12 Cox, 

Ark. 343, 127 S. W. 745. C. C. 557, 42 L. J. P. C. N. S. 45, 

1 Supra, §§ 463 et seq. ; Reg. v. L. R. 4 P. C. 599, 9 Moore, P. C. C. 

Garbett, 1 Den. C. C. 236, 2 Car. N. S. 463, 29 L. T. N. S. Ill, 21 

& K. 474, 2 Cox, C. C. 448 ; Reg. v. Week. Rep. 553. 

Coote, L. R. 4 P. C. 599, 9 Moore, See Com. v. Bradford, 126 Mass. 

P. C. C. N. S. 463, 42 L. J. P. C. 42, cited supra, § 664. 
N. S. 45, 29 L. T. N. S. Ill, 21 



1376 EVIDENCE IN CRIMINAL CASES. [CHAP XIV. 

edition. In England, however, in the days of PhiHp and 
Mary, a statute was passed authorizing such an examination, 
under certain conditions; and this statute has been reproduced, 
with various modifications, in several of the states. By these 
statutes, which are now noticed because they are of the same 
character as several American statutes on the same topic, "it 
would seem that in order to render a prisoner's statement 
strictly valid as a statutory confession, the following circum- 
stances must all have occurred : The charge must have been 
read to the accused ; ^ all the witnesses must have been ex- 
amined in his presence, and the depositions read to him after 
the examinations were completed; he must then, and not till 
then, be twice cautioned by the justice: first, generally;^ and, 
secondly, as to the inefficacy of any promises or threats which 
may have been formerly held out to him; his whole statement 
must next be taken down in his own words ; ' it must then be 
read to him,* and he must be pressed for his signature,* though 
the act is silent as to the efifect of his refusing to sign it, or 
even to admit its correctness; the justice must also sign the 
statement; ^ and this being done, it must be kept with the dep- 
ositions, and be transmitted together with them and certain 
other documents to the court where the trial is to be had, on 
or before the opening of such court." 

Since the passing of the criminal evidence act 1898, it has 
been usual, but is not essential, to inform the accused that he 
is free, if he wishes, to be sworn as a witness in his own be- 

1 Taylor, Ev. § 812. 5 See 2 Russell, Crimes, 881, 882 
See supra, § 622c, note 12. Rex v. Lambe, 2 Leach, C. L. 552 

2 See State v. Rorie, 74 N. C. 148 ; Rex v. Thomas, 2 Leach, C. L. 637 
State V. Spier, 86 N. C. 600. Foster's Case, 1 Lewin, C. C. 46 

3 See Reg. v. Roche, Car. & M. Hirst's Case, 1 Lewin, C. C. 46 
341 ; R. V. Sexton, and R. v. Mai- Rex v. Telicote, 2 Starkie, 483 
lett, cited in 2 Russell, Crimes, Rex v. Pressly, 6 Car. & P. 183. 
867. ^ See Rex v. Tarrant, 6 Car. & 

4 See § 18; 2 Russell, Crimes, P. 182; Taylor, Ev. § 815. 
881, 882. 



§§ 668, 669] CONFESSIONS. 1377 

half. If he elects to be so sworn, the evidence which he gives 
is taken down in the form of a deposition and read over to and 
signed by him. 

§ 668. Confession of accused, where compelled to an- 
swer under oath. — But the testimony of an accused party, 
taken as such, is not admissible, when such accused party is 
put on his oath and sworn and examined, not on his own mo- 
tion, but on the motion of the prosecution.^ This rule is 
founded upon the unreliable as well as the inquisitorial char- 
acter of such statements; and therefore where a man, having 
been arrested by a constable, without a warrant, upon suspicion 
of having committed murder, was compelled to answer under 
oath as a witness at the coroner's inquest, it was held that 
the statements thus made by him were not admissible against 
him on his trial for the murder.^ The same rule obtains where 
the defendant is compelled to answer under oath questions by 
the committing magistrate.^ 

§ 669. Confession of accused, where voluntary, under 
oath. — Where an accused voluntarily ofifers himself as a 
witness in a proceeding, the confessions or statements then 
made can be proved against him in another trial.^ Thus, 

1 Rex V. Lewis, 6 Car. & P. 161 ; See supra, § 664 ; Teachout v. 

Rex V. Davis, 6 Car. & P. 177; People, 41 N. Y. 7; Dickerson v. 

United States v. Williams, 1 Cliff. State, 48 Wis. 288, 4 N. W. 321. 

5, Fed. Cas. No. 16,707 ; Schocffler ^ Com. v. Harman, 4 Pa. 269 ; 

V. State, 3 Wis. 823; People v. supra, § 665. 

Gibbons, 43 Cal. 557; State v. "^ Su^ra., % 66A; People v. Mitchell, 

Garvey, 25 La. Ann. 191; Taylor, 94 Cal. 550, 29 Pac. 1105; Burnett 

Ev. § 818. V. State, 87 Ga. 622, 13 S. E. 552; 

As to admissibility of confessions State v. Lewis, 39 La. Ann. 1110, 

under oath, see also note in 18 3 So. 343; Com. v. Bradford, 126 

L.R.A.(N.S.) 872. Mass. 42; Hendrickson v. People. 

^People V. McMahon, 15 N. Y. 10 N. Y. 13, 61 Am. Dec. 721; 

384; State v. Young, 60 N. C. State v. Vaigneiir, 5 Rich. L. 391; 

(1 Winst. L.) 126. Alston v. State, 41 Tex. 39; State 
Crim. Ev. Vol. IL— 87. 



1378 



EVIDENCE IN CRIMINAL CASES. [CHAP XIV. 



where a magistrate told an accused, on examination before 
him for the larceny of a watch, that, unless he accounted for 
the manner in which he became possessed of the watch, he 
should be obliged to commit him to be tried for stealing, and 
warned him not to commit himself by his confessions, it was 
held that the statements of the accused then made, on his 
examination, were admissible as a confession on a subsequent 
trial.2 

§ 670. Confessions obtained by trick, artifice, or decep- 
tion. — A confession is not rendered inadmissible by the 
fact that it was made under a mistaken supposition that some 
of the defendant's accomplices were in custody, even though 
the mistake was created by artifice, with a view to obtain the 
confession, supposing there was nothing in the artifice calcu- 
lated to produce an untrue confession.^ Nor do false state- 
ments made to the defendant exclude the answer, if such false 



V. Hopkins, 13 Wash. 5, 42 Pac. 
627 ; Schocffler v. State, 3 Wis. 823 ; 
State V. Coifee, 56 Conn. 399, 16 
Atl. 151; State v. Carroll, 85 Iowa, 
1, 51 N. W. 1159; Jenkins v. State, 
35 Fla. 72,7, 48 Am. St. Rep. 267, 
18 So. 182 ; United States v. Kirk- 
wood, 5 Utah, 123, 13 Pac. 234; 
Powell V. State, — Miss. — , 23 So. 
266. 

estate V. Cozvan, 29 N. C. (7 
Ired. L.) 239. 

See Reg. v. Strifyp, Dear. C. C. 
648, 25 L. J. Mag. Cas. N. S. 109, 
2 Jur. N. S. 452, 4 Week. Rep. 489, 
7 Cox, C. C. 97, 36 Eng. L. & Eq. 
Rep. 587 ; Beggarly v. State, 8 Baxt. 
520; State v. Branham, 13 S. C. 3S9; 
State V. Rigsby, 6 Lea, 554 ; Shrivcrs 
V. State, 7 Tex. App. 450. 

But see Honeycutt v. State, 8 
Baxt. 371; Henry v. State, 38 Tex. 



Crim. Rep. 306, 42 S. W. 559 ; Rob- 
inson V. State, — Tex. Crim. Rep. 
— , 63 S. W. 869; People v. Kelley, 
47 CaL 125 ; State v. Sllverio, 79 N. 
J. L. 482, 76 Atl. 1069; State v. 
Longstrcth, — N. D. — , 121 N. W. 
1114. 

^ R. V. Biirley, cited in 1 Phil- 
lipps, Ev. 104; Rex v. Derrington, 
2 Car. & P. 418 ; Re 3,109 Cases of 
Champagne, 1 Ben. 241, Fed. Cas. 
No. 14,012 ; Com. v. Knapp, 9 Pick. 
496, 20 Am. Dec. 491; Com. v. 
Tuckennan, 10 Gray, 173 ; Com. v. 
H anion, 3 Brewst. (Pa.) 461; Price 
V. State, 18 Ohio St. 418; State v. 
Fortner, 43 Iowa, 494; State v. 
Phelps, 74 Mo. 128 ; supra, § 644. 

For note as to admissibility of 
confessions obtained by artifice or 
fraud, see 18 L.R.A.(N.£.) 840 



§ 670] 



CONFESSIONS. 



1379 



statements did not amount to promises or threats.' Confes- 
sions elicited by a detective while disguised as a confederate 
are in like manner admissible.^ 

Such has been the unbroken line of authority during all 
periods of the law.'* And yet the impression that follows the 
use of the words "trick, artifice, or deception," is so unpleas- 
ant that courts show a tendency to dissent from the rule. 
Where supported, it is generally argued that society and crime 
are at war with each other, and that capture by surprise or 
ambush or masked battery is permissible.^ In answer to this, 
it can be said truly that the rack and the wheel sometimes 
produced true confessions, but experience showed that such 
confessions were generally unreliable.® There are cases hold- 
ing that where the deception amounts to an actual fraud, the 
confession is to be deemed involuntary. Thus, where a con- 
fession was induced by the prosecutor falsely stating to the 



2 See Murphy v. People, 63 N. Y. 
590. 

3 Supra, § 440. 

*Joy, Confessions, p. 42, cases 
cited; State v. Hopkirk, 84 Mo. 
278; Fife v. Corn. 29 Pa. 429; Gates 
V. People, 14 111. 433; State v. 
Staley, 14 Minn. 105, Gil. 75; State 
V. Phelps, 74 Mo. 128; Hardy v. 
United States, 3 App. D. C. 35 ; 
Com. V. Hanlon, 3 Brewst. (Pa.) 
461 ; Com. v. Flood, 152 Mass. 529, 
25 N. E. 971 ; Marable v. State, 89 
Ga. 425, 15 S. E. 453 ; Rex v. Ryan, 
9 Ont. L. Rep. 137, 4 A. & E. Ann. 
Cas. 875 ; State v. Jones, 54 Mo. 
478; State v. Wilson, 172 Mo. 420, 
72 S. W. 696; State v. Rush, 95 
Mo. 199, 8 S. W. 221 ; Hurley's Case, 
cited in note to Reg. v. Moore, 2 
Bennett & H. Lead. Grim. Cas. 202; 
Price V. State, 18 Ohio St. 418; 
State V. McClain, 137 Mo. 307, 38 



S. VV. 906; Jcffcrds v. People, 5 
Park. Grim. Rep. 522; Cornwall v. 
State, 91 Ga. 277, 18 S. E. 154; 
People V. White, 176 N. Y. 331, S8 
N. E. 630; King v. State, 40 Ala. 
314; Stone v. State, 105 Ala. 60, 17 
So. 114; Burton v. State 107 Ala. 
108, 18 So. 284 ; State v. Van Tassel, 
103 Iowa, 6, 72 N. W. 497; Presley 
V. State, 59 Ala. 98; State v. 
Harrison, 115 N. C. 706, 20 S. E. 
175 ; Com. v. Cressinger, 193 Pa. 326, 
44 Atl. 433; Spencer v. State, 48 
Tex. Grim. Rep. 580, 90 S. W. 638; 
State V. Allen, 37 La. Ann. 685. 

5 Com. V. Cressinger, 193 Pa. 326, 
44 Atl. 433 ; State v. Brooks, 92 Mo. 
542, 5 S. W. 257, 330; Com. v. 
Goodwin, 186 Pa. 218, 60 Am. St. 
Rep. 852, AQ Atl. 412, 11 Am. Grim. 
Rep. 271. 

^Hcldl V. State, 20 Neb. 496, 57 
Am. Rep. 835, 30 N. W. 626. 



1380 EVIDENCE IN CRIMINAL CASES. [CHAP XIV. 

accused that he knew all about his alleged guilt, it was held 
involuntary, on the ground that under the circumstances such 
a statement was likely to produce fear or intimidation.' In 
a case of alleged larceny, the prosecuting witness sent word 
to the accused, stating that the prosecutor's wife and boy had 
seen accused taking the goods, and that it would be better for 
him to come in and tell what he got, and pay for it, and, un- 
less he did it, he would certainly prosecute him, which was an 
untrue statement. Misled by the statement, accused, anxious 
to stop the prosecution, settled for a price below a felony 
theft. Under the circumstances, the confession was not vol- 
untary, and should have been excluded.' In this case the con- 
fession could have been properly rejected upon the ground 
that a compromise is not a confession, and that the court 
should have so instructed the jury. Again, where the accused 
was charged with arson, and the prosecuting witness said to 
him, "If you will tell me I wont bother you; I wont tell any- 
one," the confession was held to have been made under a 
promise that he would not be exposed or troubled if he con- 
fessed, and was therefore inadmissible.' 

While these cases are opposed to the weight of authority, 
yet, nevertheless, they are authority for a rigid inspection of 
the testimony by which the confession is proved. As the value 
of a confession depends upon the testimony that supports it, 
there is every reason to state that, where the trick or decep- 
tion contravenes principles of truth, the confession itself 
should not go to the jury without a cautionary instruction to 
be attached to it in relation to the credibility of the testimony 
by which it is supported." On the same principle that confes- 
sions obtained by trick, artifice, or deception are admissible 

T State V. Brockman, 46 Mo. 566. 154, 105 N. W. 395; Austine v. Peo- 

8 Cook V. State, 32 Tex. Crim. pie, 51 111. 236. 

Rep. 27, 40 Am. St. Rep. 758, 22 S. 9 White v. State, 70 Ark. 24, 65 

W. 23. S. W. 937, 12 Am. Crim. Rep. 86. 

See State v. Campbell, 129 Iowa, ^° Courts, from necessity, must 



§ 670] 



CONFESSIONS. 



1381 



where there is nothing in the means used calculated to produce 
an untrue confession, a letter given by the accused to a person 
to be posted is admissible in evidence, though surreptitiously 
detained and opened." But, where an accused, under a vigor- 
ous examination by officers, during which he is informed that 
a stone, which he threw, hit and killed the deceased, and he 
is told by the officers that he had better tell the whole truth, 
in response to which he wrote a letter to his father, asking 



often accept testimony procured by 
"setting a thief to catch a thief." 
But this should only be done in 
those cases where justice would 
otherwise fail. In speaking of this 
method of obtaining confessions, 
Justice Sherwood very vigorously 
observes : "In a former dissenting 
opinion I spoke of the testimony 
of Dingfelder, the assumed name 
of the detective, Jno. F. McCul- 
lough, who testified as to extra- 
judicial confessions made by the 
defendant, while the detective was 
in jail with him. In that opinion, 
I held that the testimony of the 
detective should not have gone to 
the jury without a cautionary in- 
struction as to the credibility to 
be attached to it, similar to an in- 
struction in relation to the testi- 
mony of an accomplice, but upon 
more mature reflection, I am satis- 
fied that I should have taken a more 
advanced position. The detective, 
by a previous arrangement and 
concert of action between the cir- 
cuit attorney Clover, the assistant 
circuit attorney McDonald, and 
Furlong, forged the name of Morris 
to a check, was arrested per agree- 
ment on a warrant duly issued ; 
indicted for the forgery on tes- 



timony which was really false, but 
believed by the witnesses to be true, 
and cast into jail, where he obtained 
the alleged confession from the de- 
fendant. I hold now, that such a 
confession, so obtained by such 
means, should be altogether reject- 
ed. Such a course on the part of 
the sworn officers of the law can- 
not be denounced in terms too 
strong. It was a prostitution of the 
process of the court; it was a cor- 
rupting of the very fountain head 
of justice; and the pure administra- 
tion of the law, and public policy, 
imperatively demand that evidence 
so procured should be spurned with 
infinite loathing whenever offered. 
It is true that the opinion of the 
majority condemns, "as gently as 
any sucking dove," the method of 
obtaining tee alleged confession, but 
at the same time accepts the fruits 
of the nefarious work. This is con- 
demnation in theory, but approval 
in practice. Sherwood dissenting 
opinion State v. Brooks, 92 Mo. 
542, 607, 5 S. W. 257, 330. 

1^ Rex v. Derrington, 2 Car. & P. 
418; Com. v. Goodzvin, 186 Pa. 218, 
65 Am. St. Rep. 852, 40 Atl. 412, 11 
Am. Crim. Rep. 271 ; Sanders v. 
State, 113 Ga. 267, 38 S. E. 841. 



1382 EVIDENCE IN CRIMINAL CASES. [CHAP XIV. 

for assistance, in which he admitted the alleged facts as to 
the kilHng, such letter is not admissible in evidence against 
him.^^ And, where a defendant in jail dictated letters to his 
wife, admitting the crime, which letters were intercepted and 
used on the trial, the court held the letters inadmissible, on 
the ground that they were communications between husband 
and wife.^^ And, upon the same principle of a privileged com- 
munication, where a confession has been obtained by a party 
falsely representing himself to be an attorney, the court would 
exclude it on that ground.^* 

§ 671. Where inducement is not held out directly to 
accused. — Whenever a promise or threat is held out in 
such a way as to reach the defendant, although not made to 
the defendant directly, it will exclude the confession. "Thus, 
where a superior clerk in the postoffice said to the wife of a 
postman, who was in custody for opening and detaining a 
letter, 'Do not be frightened; I hope nothing will happen to 
your husband beyond the loss of his situation;' the prisoner's 
subsequent confession was rejected, it appearing that the wife 
might have communicated to him the substance of this state- 
ment.^ So where, in a case of murder, government had pub- 
lished a handbill offering pardon to anyone of the offenders, 
except the person who struck the blow, who should give such 
information as would lead to the conviction of his accom- 
plices; and it appeared that the prisoner was aware of this 
offer, and was induced by it to make a confession, — the court 
held that what he said could not be given in evidence." * 

^2 People V. McCullough, 81 Mich. W. 539; State v. Russell, 83 Wis. 

25, 45 N. W. 515. 330, 335, 53 N. W. 441. 

13 Corn. V. Fisher, 221 Pa. 538, See Wilson v. State, 16 Ind. 392. 
70 Atl. 865. 1 Reg. v. Harding, Armstrong, M. 

See supra, § 644. & O. 340. 

14 See People v. Barker. 60 Mich. ^ Reg. v. Bostvcll. Car. & M. 584; 
277, 306, 1 Am. St. Rep. 501, 27 N. Taylor, Ev. § 808. 



§§ 672, 673] CONFESSIONS. 1383 

§ 672. Confession in presence of party in authority.— 

The presence of persons in authority does not per se exclude 
a confession,^ nor does the fact that the custody was without 
a warrant.^ Hence the confessions of a prisoner in jail, made 
by him in the presence of an officer, who had no control over 
the jail, to a friend who advised him to tell the truth, such 
friend being in no way connected with the prosecution, and 
the officer not in any way countenancing the advice, have been 
held admissible.' The same position was taken in a case 
where the evidence was that the prisoner, when arrested, made 
certain confessions to the officer, who used no threats and 
made no promises, and the prisoner was very much fright- 
ened at the time, and spoke partly in English and partly in 
German, the officer not understanding the latter.* 

§ 673. Apparent authoritative influence is ground for 
exclusion. — A confession is only to be excluded on the 
ground of undue influence where it is elicited by temporal in- 
ducement, e. g., by threat, promise, or hope of favor held out 
to the party, in respect of his escape from the charge against 
him, by a person in authority, under circumstances likely to 
lead to a false statement ; or where there is reason to presume 
that such person appeared to the party to sanction such a 
threat or promise.^ If the influence applied was such as to 

See Com. v. Morey, 1 Gray, 461; Smith, 119 Mass. 305; State v. 

Ward V. People, 3 Hill, 395. Gossctt, 9 Rich. L. 428; People v. 

^Cox V. People, 80 N. Y. 500; Thorns, 3 Park. Crim. Rep. 256; 

State V. Cook, IS Rich. L. 29; Aaron v. State, 37 Ala. 106; supra, 

Wiley V. State, 3 Coldw. 362; §§ 649, 652b. 

supra, § 652. ^People v. Thorns, 3 Park. Crim. 

^Balbo V. People, 80 N. Y. 484. Rep. 256. 

3 Supra, § 649; Reg. v. Parker, See State v. Rorie, 74 N. C. 148. 

Leigh & C. C. C. 42, 30 L. J. Mag. i Supra, §§ 650-655; Rex v. Up- 

Cas. N. S. 144, 7 Jur. N. S. 586, church, 1 Moody, C. C. 465; Rex 

4 L. T. N. S. 451, 9 Week. Rep. v. Jones, Russ. & R. C. C. 152; 

699, 8 Cox, C. C. 465; Com. v. Rex v. Jenkins, Russ. & R. C. C. 



1384 EVIDENCE IN CRIMINAL CASES. [CHAP XIV. 

make the defendant believe that his condition would be bet- 
tered by making a confession, true or false, or that he would 
be made to sufifef if he did not confess, the confession is to 
be excluded ; but if not, the confession is admissible. 

§ 674. Construction of expressions tending to elicit a 
false confession. — Where the arresting officer says : "It 
is better for a man who is guilty to plead guilty, for he gets 
a lighter sentence;" ^ and where he says : "You had better tell 
all about it;" ^ these expressions have been held to vitiate con- 
fessions so induced.^ Undoubtedly the line of discrimination 
between the words last quoted and others which have been 
subjected to a contrary interpretation is difficult to draw ac- 
curately. But the principle is of easy definition. Was the 
inducement likely to lead to a false confession? If so, the 
confession must be rejected.* 

V. Voluntary Character and Competency Generally. 

§ 674a. Voluntary character question for the court. — 

Whether the confession was voluntary is an independent is- 

492; Reg. v. Hearn, Car. & Isl. 109; (Ir.) 547; Reg. v. Luckhurst, 

Rex V. Thompson, 1 Leach, C. L. Dears. C. C. 245, 6 Cox, C. C. 243, 

291 ; Rex v. Parratt, 4 Car. & P. 2 C. L. R. 129, 23 L. J. Mag. Cas. 

570; Rex v. Enoch, 5 Car. & P. N. S. 18, 17 Jur. 1082, 2 Week. 

539; Rex v. Mills, 6 Car. & P. 146; Rep. 243, 22 Eng. L. & Eq. Rep. 

Rex V. Thomas, 6 Car. & P. 353; 604; Com. v. Culver, 126 Mass. 464, 

Rex V. Lloyd. 6 Car. & P. 393 ; Rex 3 Am. Crim. Rep. 81 ; People v. 

V. Court, 7 Car. & P. 486; Rex Wentz, 37 N. Y. 303; King v. 

V. Shepherd, 7 Car. & P. 579; Reg. State, 40 Ala. 314; Miller v. People, 

V. Drew, 8 Car. & P. 140; Reg. v. 39 111. 457; Redd v. State, 69 Ala. 

Slecman, 1 Dears. C. C. 269; R. 257; supra, §§ 623, et seq. ; Joy. 

V. Nolan, 1 Craw. & D. C. C. (Ir.) Confessions, 25; supra, §§ 646, et 

74; R. V. Cain. 1 Craw. & D. C. C. seq. 

(Ir.) 37; Wright's Case, 1 Lewin, ^ Cow. V. Curtis, 97 Mass. 574. 

C. C. 48; R. V. Sexton, 1 Deacon, ^Se^t cases cited supra, § 651: 

Crim. Law, 424, 427; Rex v. also State v. York, 37 N. H. 175; 

Thornton, 1 ]\Ioody, C. C. 27; Rex Vaughan v. Com. 17 Gratt. 576. 

V. Simpson, 1 Moodv C. C. 410; 3 See supra, §§ 650-655. 

R. V. Moody, 2 Craw. & D. C. C. « Supra, §§ 646d, 650, 658. 



§ 675] CONFESSIONS. 1385 

sue, to be determined by the court. The defendant is entitled 
to produce evidence to prove that it was induced by threats 
or promises to rebut proof that it was voluntary.^ The prose- 
cution may produce evidence that it was voluntary to rebut 
proof that it was induced by threats or promises.^ 

§ 675. During sleep and prayer. — A large factor in de- 
termining the voluntary character of a confession is the mental 
condition of the accused.^ Manifestly, then, during sleep, 
when the reflective faculties are suspended, and the bodily con- 
dition rests almost wholly upon the action of the involuntary 
muscles, and there is generally a complete loss of conscious- 
ness, confessions under such conditions are involuntary and 
therefore inadmissible.^ It is said, however, in one case, that 
the operation of the mind was an enigma, and its expressions 
in the unconsciousness of sleep were frequently vagaries and 
fictions, but sometimes born of reality, and hence an ejacula- 
tion of the accused that "they have deviled me so much about 
this tliat I don't care how it goes; I only consented to his 
death and gave him the poison," — was held admissible, and 
its character, as to being voluntary, was a question for the 
jury.^ Under any reasonable interpretation of voluntary char- 
acter, the words, "they have deviled me so much about this 
that I don't care how it goes," would show not only that it was 
involuntary, but induced by a continuous inquisition. From 
this case it seems that there are courts controlled by the idea 
that there is some mystery about sleep that lends peculiar 
weight to expressions uttered in a state of unconsciousness, 

1 Post, § 689 ; s. p. State v. Platte, 2 People v. Robinson, 19 Cal. 40 ; 

34 La. Ann. 1061. Daniels v. State, 78 Ga. 98, 6 Am. 

^Com. V. Ackert, 133 Mass. 402; St. Rep. 238. 

post, § 689; supra, §§ 622h-622j. See Lanergan v. People, 39 N. Y. 

1 Supra, § 635. 39 ; post, § 680. 

See also note in 18 L.R.A.(N.S.) ^ State v. Morgan, 35 W. Va. 260, 

788. 13 S. E. 385. 



1386 EVIDENCE IN CRIMINAL CASES. [CHAP XIV. 

and that gives them a free and voluntary character. In a 
Georgia case ^ the court had to deal with a confession claimed 
to be made during prayer, when the accused was confined in 
his cell, but his expression was overheard by the jailer. There 
it seems to have been admitted on the theory that even where 
a person could not be compelled to testify, or where the com- 
munication was privileged, yet a third person overhearing 
could testify to what was heard. 

§ 676. During intoxication. — While a disturbance or 
a partial loss of full control of the mental faculties is not in 
itself a ground for declaring the confession to be involuntary, 
the circun: stances are to be taken into consideration by the 
jury when they come to consider the evidence.^ Hence, con- 
fessions made during intoxication are not involuntary on ac- 
count of the intoxication,^ and particularly so Avhere the cir- 
cumstances of the confession show deliberation and intelli- 
gence on the part of the accused,^ and this is true even though 
the intoxication was induced by a police officer, who sought in 
this way to lead the accused to confess.* But where the sher- 
iff, on arresting accused, furnished him with liquor and then 

4 Woolfolk V. State, 85 Ga. 69, 99, 426, 41 Am. Rep. 296, 10 N. W. 

11 S. E. 814. 472; Williams v. State, 12 Lea, 211; 

See Betts v. State, 66 Ga. SOS. Mixon v. State, 36 Tex. Crim. Rep. 

1 White V. State. 32 Tex. Crim. 66, 35 S. W. 394. 

Rep. 625, 25 S. W. 784; Com. v. ^ Leach v. State, 99 Tenn. 584, 42 

Howe, 9 Gray, 110; State v. Laugh- S. W. 195. 

tin, 171 Ind. 66, 84 N. E. 756; ^ Rex v. Spilshury, 7 Car. & P. 

State V. Hogan, 117 La. 863, 42 So. 187; Gore v. Gibson, 13 Mees. & 

352; State v. Feltes, 51 Iowa, 495, W. 625, 14 L. J. Exch. N. S. 151, 

1 N. W. 755; People v. Kent, 41 9 Jur. 140; Jefferds v. People, 5 

Misc. 191, 83 N. Y. Supp. 948; Com. Park. Crim. Rep. 522; Eskridge v. 

V. Chance, 174 Mass. 245, 75 Am. State, 25 Ala. 30; People v. Ram- 

St. Rep. 306, 54 N. E. 551. irec, 56 Cal. 533, 38 Am. Rep. 73; 

^ State V. Berry, 50 La. Ann. State v. Hopkirk, 84 Mo. 278. 

1309, 24 So. 329; Lester v. State, 32 See also note in 18 L.R.A.(N.S.) 

Ark. 727; State v. Grear, 28 Minn. 843. 



§ 676a] CONFESSIONS. 1387 

questioned him to obtain a confession, such conduct is unjusti- 
fiable, and the confession must be excluded,^ and this rule 
has found positive expression in, at least, one statute.® 

§ 676a. By children. — A confession of guilt by a child 
does not stand on any different footing than that of an adult. 
The determining question in such case is the age, intelligence, 
and general understanding. A safe rule, and a rule based both 
on logic and justice, is that the court ought not to receive the 
confession of a child who could not qualify as a w^itness.^ 
It should first be shown that the child is reasonably intelligent, 
and old enough to understand the effect of what he says and 
to comprehend the situation.^ However, a child under four- 
teen years of age may be convicted of a crime upon his ex- 
trajudicial confession, if the fact of the crime be otherwise 
proved, where it is first shov/n that the child was able to dis- 
tinguish between right and wrong, with respect to the offense 
for which he is on trial.^ But a confession obtained from a 
child through threats and fear, where he was privately ex- 
amined and without friends or counsel to advise him, is in- 
admissible.* 

5 McNntt V. State, 68 Neb. 207, 94 Am. St. Rep. 844, 8 So. 858 ; Com. 
N. W. 143, 14 Am. Crim. Rep. 127; v. Smith, 119 Mass. 305; Bartley 
McCabe v. Com. 3 Sadler (Pa.) v. People, 156 111. 234, 40 N. E. 
426, 8 Atl. 45. 831 ; Com. v. Preece, 140 Mass. 276, 

6 Georgia Code 1895, § 5194. 5 N. E. 494, 5 Am. Crim. Rep. 107; 
1 Grayson v. State, 40 Te.x. Crim. State v. Guild, 10 N. J. L. 163, 18 

Rep. 573, 51 S. W. 246. Am. Dec. 404; State v. Bostick, 4 

See Ford v. State, 75 Miss. 101, Harr. (Del.) 563; Pennsylvania v. 

21 So. 524. Dillon, 4 Dall. 116, 1 L. ed. 765. 

^ Slate V. Guild, 10 N. J. L. 163, ^Hoober v. State, 81 Ala. 51, 1 

18 Am. Dec. 404; Birkenfield v. So. 574; State v. Mason, 4 Idaho, 

State, 104 Md. 253, 65 Atl. 1 ; Rex 543, 43 Pac. 63 ; State v. Doherty, 

V. Thornton, 1 Moody, C. C. 27 ; 2 Overt. 80. 

State V. Aaron, 4 N. J. L. 231, 7 See Hampton v. State, 167 Ala, 

Am. Dec. 592. 7Z, 52 So. 659. 
3 Martin v. State, 90 Ala. 602, 24 



1388 



EVIDENCE IN CRIMINAL CASES. [CHAP XIV. 



§ 676b. Of different offense. — A confession made by an 
accused of an offense different from that with which he is 
charged, and in no way connected with it, is not admissible 
on his trial for the offense charged.^ But where the differ- 
ent offense confessed is a part of the same scheme, or is so 
connected as not to be severed from the offense on trial, it is 
admissible.^ 

§ 676c. Caution as affecting character of the confes- 
sion. — Unless otherwise provided by statute,^ a confession 
otherwise voluntary is not rendered inadmissible because the 
accused was not cautioned before making it. As stated by 
Mr. Joy, "A confession is admissible although it does not 
appear that the prisoner was warned that what he said would 



1 State V. Jackson, 95 Mo. 623, 8 
S. W. 749 ; Com. v. Wilson, 186 Pa. 
1, 40 Atl. 283, 11 Am. Crim. Rep. 
261 ; Tidwell v. State, 40 Tex. Crim. 
Rep. 38, 47 S. W. 466, 48 S. W. 
184; Drury v. Territory, 9 Okla. 
398, 60 Pac. 101, 13 Am. Crim. Rep. 
300. 

See Neiderluck v. State, 21 Tex. 
App. 320, 17 S. W. 467; Wilson v. 
State, 84 Ala. 426, 4 So. 383. 

See United States v. Kurt:;, 4 
Cranch, C. C. 682, Fed. Cas. No. 
15,547; Lismore v. State, 94 Ark. 
207, 126 S. W. 853 ; People v. Wil- 
liams, 159 Mich. 518, 124 N. W. 
555 ; State v. PVenzel, 72 N. H. 396. 
56 Atl. 918; State v. Laivrence, 74 
Ohio St. 38, 77 N. E. 266, 6 A. & 
E. Ann. Cas. 888; Robinson v. State, 
55 Tex. Crim. Rep. 42, 114 S. W. 
811. 

2 State V. Cotven, 56 Kan. 470, 43 
Pac. 687; State v. Jones, 171 Mo. 
401, 94 Am. St. Rep. 786, 71 S. W. 



680 ; Campos v. State, 50 Tex. Crim. 
Rep. 289, 97 S. W. 100; Pilgrim v. 
State, 59 Tex. Crim. Rep. 231, 128 
S. W. 128. 

See State v. Poole, 42 Wash. 192, 
84 Pac. 727; State v. Dalton, 43 
Wash. 278, 86 Pac. 590. 

^ Under the provisions of the 
Texas Criminal Code, where the ac- 
cused is under arrest, his confession 
to the officer or to others cannot 
be used against him unless he has 
been first cautioned that they may 
be used against him. Greer v. State, 

31 Tex. 129; Wilson v. State, 

32 Tex. 112; Adams v. State, 34 
Tex. 526; Carter v. State, 37 Tex. 
362 ; Maddo.v v. State, 41 Tex. 205 
Haynie V. State, 2 Tex. App. 168 
Davis V. State, 2 Tex. App. 588 
Marshall v. State, 5 Tex. App. 273 
Jackson V. State, 7 Tex. App. Z63 
Kennon V. State, 11 Tex. App. 356 
Young v. State, 54 Tex. Crim. Rep 
417. 113 S. W. 276. 



§ 676c] CONFESSIONS. 1389 

be used against him, or although it appears that he was not 
so warned," ^ and this expresses the rule upon the subject.^ 
Caution pertains particularly to judicial examinations, such 
as those held before a committing magistrate, and on the trial 
of the accused. In such examinations, or at such trial, it is 
the duty of the court to advise the accused of his legal rights, 
where the statute provides that he may or may not testify, at 
his own election, and this caution is regulated by the statute 
itself.* Aside, then, from the statute, a confession otherwise 
voluntary is admissible, notwithstanding the fact that the ac- 
cused was not cautioned.^ However, it has been observed that 
after the fact appears that the influence of hope or fear ex- 
isted, inducing a confession, an explicit warning must be given 
the accused of the consequences of a confession, and it must 
also be clear that he understood such warning, before his con- 
fessions are admissible in evidence.^ This is the humane pro- 
cedure, and, while the absence of caution does not affect the 
voluntary character of an otherwise admissible confession, the 
practice ought to prevail that the accused is advised of his legal 

2 Joy, Confessions, § 5, p. 45. 36 S. E. 501, 12 Am. Crim. Rep. 

^ Simon v. State, 36 Miss. 636; 107; Peo(yle v. Kennedy, 159 N. 

Golson V. State, 124 Ala. 8, 26 So. Y. 346, 70 Am. St. Rep. 557, 54 N. 

975; State v. Rugero, 117 La. 1040, E. 51: People v. Randazsio, 194 N. 

42 So. 495; Com. v. Robinson, 165 Y. 147, 87 N. E. 112. 

Mass. 426, 43 N. E. 121; State v. ^ Z)amV/.y v. 5"?a/^, 57 Fla. 1, 48 So. 

Barrington, 198 Mo. 23, 95 S. W. 747. 

235 ; Sampson v. State, 54 Ala. 5 Reg. v. Arnold, 8 Car. & P. 

241; Reg. v. Priest, 2 Cox, C. C. 621, 622; Reg. v. Priest, 2 Cox, C. 

27^\ State V.Ellington, A Uz\\o,S29, C. 378; Simon v. State, 36 Miss. 

43 Pac. 60; State v. Hogan, 117 La. 636, 639; Stale v. Hand, 71 N. J. 
863, 42 So. 352; Coil v. State, 62 L. 137, 58 Atl. 641; Com. v. Mos- 
Ncb. 15, 86 N. W. 925; State v. ler, 4 Pa. 264; State v. Baker, 58 
Howard, 92 N. C. 772; State v. S. C. Ill, 36 S. E. 501, 12 Am. 
//(7;(rf. 71 N. J. L. 137, 58 Atl. 641 ; Crim. Rep. 107; State v. IVork- 
Dill V. State, 35 Tex. Crim. Rep. man, 15 S. C. 540, 545. 

240, 60 Am. St. Rep. 37, 33 S. W. 6 j/an Buren v.' State, 24 Miss. 

126; State v. Baker, 58 S. C. Ill, 512. 



1390 



EVIDENCE IN CRIMINAL CASES. [CHAP XIV. 



rights wherever the conditions are such that it is reasonably 
certain that he does not himself fully understand them.' 

VI. How Far Original Improper Influence Vitiates 
Subsequent Confessions. 

§ 677. Confession subsequent to an involuntary con- 
fession; burden of proof. — Where a confession has been 
obtained from the accused by improper inducement, any state- 
ment made by him while under that influence is inadmissible.* 
The question of whether or not such subsequent confession 
can be received in evidence is for the judge, and each case 



''State V. Andrews, 35 Or. 388, 
58 Pac. 765; McNisk v. State, 45 
Fla. 83, 110 Am. St. Rep. 65, 34 
So. 219, 12 Am. Crim. Rep. 125. 

1 Joy, Confessions, p. 69; Russell, 
Crimes, 7th Eng. ed. p. 2180; 2 Rus- 
sell, Crimes, 382 ; Reg. v. Hcwctt, 
Car. & M. 534; Rex v. Cooper, 5 
Car. & P. 535 ; Rex v. Howes, 6 Car. 
& P. AH; Reg. v. Rue, 13 Cox, C. 
C. 209, 34 L. T. N. S. 400; Com. 
V. Ciillen, 111 Mass. 435; Com. v. 
Harman, 4 Pa. 269; State v. 
Roberts, 12 N. C. (1 Dev. L.) 
259; Peter v. State, 4 Smedes & 
M. 31; Deathridge v. State, 1 
Sneed, 75; State v. Guild, 10 N. J. 
L. 163, 18 Am. Dec. 404; Ward v. 
State, 50 Ala. 120; Redd v. State, 
69 Ala. 255; State v. Jones, 54 Mo. 
478; Barnes v. State, 36 Tex. 356; 
Walker v. State, 7 Tex. App. 245, 
32 Am. Rep. 595 ; Love v. State, 
22 Ark. 336. 

But see Moore v. Com. 2 Leigh, 
701 ; Mnckmasfers v. Sfa'e, 82 
Miss. 459, 34 So. 156, 12 Am. 



Crim. Rep. 119; Johnson v. State. 
48 Tex. Crim. Rep. 423, 88 S. W. 
223; Clayton v. State, 31 Tex 
Crim. Rep. 489, 21 S. W. 255; 
Simon V. State, 37 Miss. 288; 
Wyatt V. State, 25 Ala. 9; Porte-- 
V. State, 55 Ala. 95; Hooter v 
State, 81 Ala. 51, 1 So. 574; Banks 
V. State, 84 Ala. 430, 4 So. 382: 
Corley v. State, 50 Ark. 305, 7 S 
W. 255 ; Williams v. State, 69 Ark 
599, 65 S. W. 103, 12 Am. Crim. 
Rep. 110; Pco/>le v. Castro. 12S 
Cal. 521, 58 Pac. 133; Burns v. 
State, 61 Ga. 192; State v. Cham- 
bers, 39 Iowa, 179; Taylor v. Com. 
19 Ky. L. Rep. 836, 42 S. W. 1125; 
State V. Mims, 43 La. Ann. 532, 9 
So. 113; Peter v. State, 4 Smedes 
& M. 31; Van Biircn v. State, 24 
Miss. 512; Ford v. State, 75 Miss. 
101, 21 So. 524; Banks v. State, 93 
Miss. 700, 47 So. 437; Durham v. 
State, — Miss. — , 47 So. 545; 
State V. Brown, 73 Mo. 631 ; State 
V. Drake, 82 N. C. 592; State v. 
Drake, 113 N. C. 624, 18 S. E. 166: 



§ 677] 



CONFESSIONS. 



1391 



must be determined upon its own facts.^ But the judge will 
indulge the presumption that, where a confession has been ob- 
tained under improper inducement, the subsequent confession 
of the same crime is the result of the same influence.' How- 
ever, this is not a conclusive presumption, and may be re- 
butted by positive proof showing that the subsequent con- 
fession was free from the original improper inducement.* 
But such proof must clearly show that the impression caused 
by the improper inducement had been removed before the 
subsequent confession was made, to admit such subsequent 
confession in evidence.^ But when it appears that the original 
improper inducement has ceased to operate, the subsequent 
confessions are admissible.^ 



MilUgan's Case, 6 N. Y. City Hall 
Rec. 69; Nichols v. State, 1 Ohio 
Dec. Reprint, 55; State v. Wintzin- 
gerode, 9 Or. 153 ; Com. v. Har- 
man, 4 Pa. 269; People v. Rankin, 
2 Wheeler, C. C. 467. 

See also note in 18 L.R.A.(N.S.) 
857. 

2 Russell, Crimes, 7th Eng. ed. p. 
2180. 

^ Smith V. State, 74 Ark. 397, 85 
S. W. 1123; Com. v. Sheets, 197 
Pa. 69, 46 Atl. 753. 

See Reg. v. Viau, Rap. Jud. 
Quebec 7 B. R. 362; State v. 
Drake, 82 N. C. 592; Beggarly v. 
Slate, 8 Baxt. 520; Redd v. State, 
69 Ala. 255; Porter v. State, 55 
Ala. 95; State v. Jones, 54 Mo. 
478; State v. Brozvn, 73 Mo. 631; 
State V. Brit tain. 117 N. C. 783, 
23 S. E. 433; Cady v. State, 44 
Miss. 332; Barnes v. State, 36 Tex. 
356; Whitley v. State 78 Miss. 
255, 53 L.R.A. 402, 28 So. 852, 12 
^m. Crim. Rep. 122; Serpentine v. 
State, 1 How. (Miss.) 256; Love 



V. State, 22 Ark. 336; Simon v. 
State, 5 Fla. 285 ; People v. John- 
son, 41 Cal." 452; Com. v. Knapp, 
9 Pick. 496, 20 Am. Dec. 491. 

^ State V. Hozvard, 17 N. H. 171 
Thompson v. Com. 20 Gratt. 724 
Deathridge v. State, 1 Sneed, 75 
Stnith V. State, 74 Ark. 397, 85 S. 
W. 1123. 

5 Bob V. State, 32 Ala. 560 ; Cor- 
ky V. State, 50 Ark. 305, 7 S. W. 
255; McNish v. State, 45 Fla. 83, 
110 Am. St. Rep. 65, 34 So. 219, 
12 Am. Crim. Rep. 125 ; State v. 
Drake, 113 N. C. 624, 18 S. E. 166; 
Levison v. State, 54 Ala. 520; 
Owen V. State, 78 Ala. 425, 56 Am. 
Rep. 40, 6 Am. Crim. Rep. 206; 
United States v. Chapman, Fed. 
Cas. No. 14,783. 

^Russell, Crimes, 7th Eng. ed. p. 
2182; Rex v. Thompson, 1 Leach, 
C. L. 291 ; Reg. v. Cheverton, 2 
Post. & F. 833; State v. Hozvard, 
17 N. H. 171; State v. Carr, 37 
Vt. 191 ; State v. Guild, 10 N. J. L. 
163, 18 Am. Dec. 404; Com. v. 



1392 



EVIDENCE IN CRIMINAL CASES. [CHAP XIV. 



After the fact is known that an improper influence existed, 
inducing a former confession, an explicit warning should be 
given the accused of the consequences of a confession, and it 
must be clear that he was relieved from the effect of the im- 
proper influence previously applied, before the subsequent con- 
fession is admissible in evidence.' 

In those states where the confessions are prima facie vol- 
untary, logically the subsequent confession would be presumed 
to be voluntary.* But under such circumstances, the accused 
would have the right to introduce evidence showing that the 
confession was involuntary.^ 

While lapse of time may, of itself, raise the presumption 
that the fact of the improper inducement has ceased,^" still, 



Sheets, 197 Pa. 69, 46 Atl. 753; 
LaiigJilin v. Com. 18 Ky. L. Rep. 
640, Z7 S. W. 590. ' 

See State v. Fisher, 51 N. C. (6 
Jones, L.) 478; Com. v. Cnllen, 111 
Mass. 435; Com. v. Cuffee, 108 
Mass. 285. 

See Com. v. Knapp, 10 Pick. 
477, 20 Am. Dec. 534; Jackson v. 
State, 39 Ohio St. Z7 ; Wigginton 
V. Com. 92 Ky. 287, 17 S. W. 634; 
Pennsylvania V. Di'lon, 4 Dall. 
116, 1 L. ed. 765; Young v. State, 
50 Ark. 501, 8 S. W. 828; Smith v. 
State, 74 Ark. 397, 85 S. W. 1123; 
Hardy v. United States, 3 App. D. 
C. 35 ; United States v. Nardello, 
4 Mackey, 503; State v. Foster, 136 
Iowa, 527, 114 N. W. 36; Green v. 
Com. 26 Ky. L. Rep. 1221, 83 S. 
W. 638; State v. Stuart, 35 La. 
Ann. 1015; State v. Wilson, Z6 La. 
Ann. 864; State v. Jones, 46 La. 
Ann. 1395, 16 So. 369; Com. v. 
Myers, 160 Mass. 530, 2,6 N. E. 
481 ; Simmons v. State, 61 Miss. 
243; State v. Patterson, 7i Mo. 



695 ; Jackson's Case, 1 N. Y. City 
Hall. Rec. 28. 

See State v. Henry, 6 Baxt. 539. 

"^ Meynell's Case, 2 Lewin, C. C. 
122; Van Burcn v. State, 24 Miss. 
512; State v. Fisher, 51 N. C. (6 
Jones, L.) 478; State v. Scales, 50 
N. C. (5 Jones, L.) 420; Slate v. 
Gregory, 50 N. C. (5 Jones, L.) 
315; Stale v. Jcnes, 54 Mo. 478; 
Slate V. Chambers, 39 Iowa, 179; 
United Slates v. Cooper, Fed. Cas. 
No. 14,864 ; Porter v. State, 55 Ala. 
95; Reg. v. Finkle, 15 U. C. C. P. 
453; Rex v. Cooper, 5 Car. & P. 
535; Reg. v. Viau, Rap. Jud. Que- 
bec 7 B. R. 362. 

^ State V. Grover, 96 Me. 363, 52 
Atl. 757, 12 Am. Crim. Rep. 128. 

9 Roesel v. Slate, 62 N. J. L. 216. 
41 Atl. 408; Com. v. Van Horn, 
188 Pa. 143, 41 Atl. 469. 

^° State V. Force. 69 Neb. 162. 95 
N. W. 42, 12 Am. Crim. Rep. 160; 
State V. Guild, 10 N. J. L. 163, 18 
Am. Dec. 404. 



§ 677] CONFESSIONS. 1393 

mere length of time is immaterial, and if there has been no 
change in the circumstances or situation, the subsequent con- 
fession is inadmissible.^^ 

It has been held, generally, that the influence of the im- 
proper inducement is removed where the accused is properly- 
cautioned before the subsequent confession; ^^ but the warning 
so given should be explicit, and it ought to be full enough to 
apprise the accused, first, that anything that he may say after 
such warning can be used against him; and, second, that his 
previous confession, made under improper inducement, cannot 
be used against him,^^ for it has been well said that, "for 
want of this information, the accused might think that he 
could not make his case worse than he had already made it, 
and, under this impression, might have signed the confession 
before the magistrate." ^^ In the following cases the warning 
was held insufficient to remove the inducement and admit the 
subsequent confession. ^^ 

Another element to be considered, upon the question of 
whether or not a subsequent confession is rendered involun- 

^^ United States v. Chapman, 191; Maples v. State, 3 Heisk. 408; 

Fed. Cas. No. 14,783; State v. Joy, Confessions, 72-74; Rex v. 

Chambers, 39 Iowa, 179; Sherring- Hoives, 6 Car. & P. 404; Com. v. 

ton's Case, 2 Lewin, C. C. 123; Chahbock, 1 Mass. 144; Jones v. 

United States v. Cooper, Fed. Cas. State, 58 Miss. 349; post, § 703c. 

No. 14,864; Dinah v. State, 39 Ala. ^^ State v. Gregory, 50 N. C. (5 

359; Beery v. United States, 2 Jones, L.) 315; State v. Scates, 

Colo. 186; Peter v. State, 4 50 N. C. (5 Jones, L.) 420. 

Smedes &. M. 31. "^^Rex v. Sexton, cited in note to 

^^Rex V. Bryan, Jebb, C. C. 157; Reg. v. Moore, 2 Benn. & H. Crim. 

Reg. V. Horner, 1 Cox, C. C. 364; Cas. 190; Smith v. Worcester, 

Reg. V. Collier, 3 Cox, C. C. 57; Spring Assizes, 1830. 

Reg. V. Bate, 11 Cox, C. C. 686; ^^Reg. v. Millen, 3 Cox, C. C. 

Howard v. Com. 28 Ky. L. Rep. 507; Reg. v. Doherty, 13 Cox, 

737, 90 S. W. 578; Com. v. Howe, C. C. 23; United States v. Chap- 

132 Mass. 250; Ward v. People, 3 man. Fed. Cas. No. 14,783; State 

Hill, 395; V enable v. Com. 24 v. Chambers, 39 Iowa, 179; Ford v. 

Gratt. 639; State v. Carr, 37 Vt. State. 75 Miss. 101, 21 So. 524. 
Crim. Ev. Vol. II.— 88. 



1394 



EVIDENCE IN CRIMINAL CASES. [CHAP. XIV. 



tary because of an original improper inducement connected 
with the first confession, is : Did the confession immediately 
follow, or did the accused finally yield to the original improper 
inducement? If he did, then manifestly the confession is 
involuntary,^' If he did not, and it appears to the satis- 
faction of the court that the influence of such improper induce- 
ment ceased to operate before the confession was made, then 
it is voluntary and admissible." The burden of proof is on 
the prosecution to show that the subsequent confession was not 
made under the improper inducement which rendered the first 
confession involuntary.^* 



^s Barnes v. State, 26 Tex. 356 ; 
Miller v. State, 40 Ala. 54; Ward 
V. State, 50 Ala. 120; Porter v. 
State, 55 Ala. 95 ; People v. Robert- 
son, 1 Wheeler, C. C. 66; State v. 
George, 50 N. C. (5 Jones, L.) 233; 
State V. Drake, 113 N. C. 624, 18 S. 
E. 166. 

^''Beggarly v. State, 8 Baxt. 520; 
State V. Va'gneur, 5 Rich. L. 391 ; 
Paris V. State, 35 Tex. Crim. Rep. 
82, 31 S. W. 855; Ri2:;olo v. Com. 
126 Pa. 54, 17 Atl. 520; Rex v. 
Richards, 5 Car. & P. 318; Mose 
V. State, 36 Ala. 211; Sampson v. 
State, 54 Ala. 241 ; State v. Vey, 21 
S. D. 612, 114 N. W. 719; Moore v. 
Com. 2 Leigh, 701 ; State v. Ed- 
wards, 106 La. 674, 31 So. 308; 
Walker v. State, 9 Tex. App. 38; 
Holland V. State, 39 Fla. 178, 22 
So. 298. See Carlisle v. State, 37 
Tex. Crim. Rep. 108, 38 S. W. 991 ; 
Early v. Com. 86 Va. 921, 11 S. E. 
795; State v. Hazvorth, 24 Utah, 
398, 68 Pac. 155 ; McAdory v. State, 
62 Ala. 154; Levison v. State, 54 
Ala. 520; Morehead v. State, 9 
Humph. 635; Russell, Crimes, 7th 



Eng. ed. p. 2182; State v. Willis, 71 
Conn. 293, 41 Atl. 820; Laughlin v. 
Com. 18 Ky. L. Rep. 640, Z7 S. W. 
590; Bullock v. State, 65 N. J. L. 
557, 86 Am. St. Rep. 668, 47 Atl. 
62; State v. Potter, 18 Conn. 166: 
Holsenbake v. State, 45 Ga. 43. 

18 Deathridge v. State, 1 Sneed, 
75; State v. Roberts, 12 N. C. 
(1 Dev. L.) 259; Thompson v. 
Com. 20 Gratt. 724 ; Peter v. State, 
4 Smedes & M. 31 ; Cady v. State, 44 
Miss. 333 ; State v. Drake, 82 N. C. 
592. See also Reg. v. Sherrington, 
2 Lewin, C. C. 123; Roscoe, Crim. 
Ev. 8th ed. 68; Compare McAdory, 
V. State, 62 Ala. 677; Murray v 
State, 25 Fla. 528, 6 So. 498; Por- 
ter V. State, 55 Ala. 95; Com. v. 
Howe, 132 Mass. 250; Ward v. 
State, 50 Ala. 120; Com. v. Har- 
man, 4 Pa. 269; Walker v. State, 
7 Tex. App. 245, 32 Am. Rep. 595; 
Daniels v. State, 78 Ga. 98, 6 Am. 
St. Rep. 238; United States v. 
Cooper, 3 Quart. L. J. 42, Fed. Cas. 
No. 14,864; Owen v. State, 78 Ala. 
425, 56 Am. Rep. 40, 6 Am. Crim. 
Rep. 206; State v. Wescott, 130 



677a] 



CONFESSIONS. 



1395 



§ 677a. Inculpatory facts discovered through inadmis- 
sible confessions. — Where an inadmissible confession re- 
sults in the discovery of inculpatory facts, all courts admi^" 
evidence of such facts, but differ in the extent to which they 
will admit the inadmissible confession under such circum- 
stances.^ 

The authorities are logically divided into three classes: 
First, those courts that admit the entire confession to accom- 
pany the facts. This view is supported by one authoritative 
writer who observes : *Tf we are to cease distrusting any part, 
we should cease distrusting all," of the confession, ^^ and this 
view is sustained in the following cases, where the entire in- 
admissible confession is admitted.^ Second, those courts 



Iowa, 1, 104 N. W. 341 ; Banks v. 
State, 93 Miss. 700, 47 So. 437; 
Durham v. State, — Miss. — , 47 
So. 545 ; Mackmasters v. State, 82 
Miss. 459, 34 So. 156, 12 Am. Crim. 
Rep. 119; State v. Force, 69 Neb. 
162, 95 N. W. 42, 12 Am. Crim. 
Rep. 160; Whitney v. Com. 24 Ky. 
L. Rep. 2524, 74 S. W. 257, 12 Am. 
Crim. Rep. 170. 

^ As to admissibility of evidence 
obtained by aid of an involuntary 
or inadmissible confession, see 
note in 53 L.R.A. 402. 

la Wigmore, Ev. § 857. 

2 Sampson v. State, 54 Ala. 241 ; 
Anderson V. State, 104 Ala. 83, 
16 So. 108; People v. Ah Ki, 20 
Cal. 178; State v. Moore, 2 N. C. 
(1 Hayvv.) 482; Brister V. State, 26 
Ala. 128: State v. Brick, 2 Harr. 
(Del.) 530; Warren v. State, 29 
Tex. 369 (under Code. All Texas 
cases in accord) ; Whitney v. Com. 
24 Ky. L. Rep. 2524, 74 S. W. 257, 
12 Am. Crim. Rep. 170. See State 
?. Johnny, 29 Nev. 203, 87 Pac. 3; 



Jane v. Com. 2 Met. (Ky.) 30; 
Fredrick v. State, 3 W. Va. 695; 
Parker v. State, 40 Tex. Crim. Rep. 
119, 49 S. W. 80; Beery v. United 
States, 2 Colo. 211 (Dissenting 
opinion by Wells). 

In reply to the view that an 
inadmissible confession, corrobora- 
ted by the discovery of inculpatory 
facts, ought to be admitted as a 
whole, it is obvious that apparent 
corroboration cannot establish the 
truth of something that never had 
an existence. It is a universal ex- 
perience that crimes are most fre- 
quently discovered through, or wit- 
nessed by, persons whose situation 
is such as to point to such witness 
as the guilty party, and whose 
knowledge of the facts is equal to 
that of the party who actually 
committed the crime. Thus, a 
prospector in a western state saw 
two men apparently digging a dis- 
covery shaft on a claim, at the 
same time giving some evidence of 
apprehension in their manner. 



1396 



EVIDENCE IN CRIMINAL CASES, [CHAP. XIV. 



that admit only that part of the confession relevant to the 
corroborating facts. This view has been accepted upon the 
authority of Mr. Leach, who observes : "But it should seem 
that so much of the confession as relates strictly to the fact 
discovered by it may be given in evidence; for the reason of 
rejecting extorted confessions is the apprehension that the 
prisoner may have been thereby induced to say what is false; 
but the fact discovered shows that so much of the confession 
as immediately relates to it is true." ^ This is the settled rule 



When they left the spot, the pros- 
pector, out of a natural curiosity, 
and thinking that they were merely 
hiding the discovery of a bonanza 
claim, inspected the work, only to 
discover that they had hidden rich 
amalgam, evidently stolen from a 
nearby placer. The prospector was 
apprehended by parties searching 
for the thieves, in the very act of 
imcovering the hidden amalgam. 
Such * conditions are a part of 
nearly every crime. Where a con- 
fession is extorted from the dis- 
coverer of, or the witness to, a 
crime, it can always be corroborat- 
ed by convincing proof, but to con- 
vict the witness is an absolute 
miscarriage of justice. In the il- 
lustration used is shown the wrong 
that would follow by admitting 
the extorted confession, because it 
was apparently corroborated by the 
facts discovered through it. In 
this instance, but for the admission 
of the extorted confession, the 
prospector would have been cleared 
by extraneous facts which proved 
that his personal factor was such 
that he would not go near a placer 
claim ; that he had no knowledge of 
ditches or the location of riffles 



where the amalgam would be 
found, and did not know how to 
gather it and take it from the rif- 
fles. But the admission of the in- 
voluntary confession corroborated 
the facts, and the facts corroborat- 
ed the confession. Result, con- 
viction. Later, further investiga- 
tion revealed the thief. Here, then, 
is an example of the corpus, but 
not a corpus delicti. Hence the 
only safe rule is to reject the in- 
admissible confession, and to show 
the crime by evidence aliunde the 
confession. See Kennon v. State, 
11 Tex. App. 356; Owens v. State, 
16 Tex. App. 448; Walker v. State, 
2 Tex. App. 326; Johnson v State, 
142 Ala. 1, 37 So. 937. 

3 1 Leach, C. L. 291. See 2 
East, P. C. 657; Reg. v. Garbett, 2 
Car. & K. 490, 1 Den. C. C. 236, 2 
Cox, C. C. 448; State v. Vaigncur, 
5 Rich. L. 404. 

This evidently influences Mr. Joy, 
who says : "But any act of the 
party, though done in consequence 
of such confession, is admissible, 
if it appears from a fact thereby 
discovered that so much of the 
confession as relates to it is true." 
Joy, Confessions, p. 81. 



§ 677a] 



CONFESSIONS. 



1397 



in England, and has been followed without question in many 
of the states.* Third, those courts that admit no part of the 
confession, but only the discovery of the inculpatory facts.'* 
This view is the prevailing doctrine in this country. It is true 
that the line is not always clearly drawn. The inculpatory 
facts are always admissible, and, of necessity, the court must 
determine the connection of the accused with those facts. 
Did the accused have knowledge of the inculpatory facts be- 
cause he was an unwilling witness to, or discovered, the crime, 
and is his knowledge consistent with innocence of the crime; 
or did the accused have knowledge of the inculpatory facts 
because he committed the crime, and are such facts corrobora- 
tion of the involuntary confession? To satisfactorily deter- 
mine either form of the question, more or less detail must be 
inquired into, and necessarily the line cannot be very closely 
drawn, so that many of the authorities cited seem to support 
both the second and third views above set forth. 



^ Mosey' s Case, 1 Leach, C. L. 
265 note; Rex v. Jenkins, Rnss. & 
R. C. C. 492; R. v. Cain, Cr. & D. 
C. C. (Ir.) 2>7; Reg. v. Gould, 9 
Car. & P. 364; Reg. v. Berriinan, 6 
Cox, C. C. 388; Georgia Crim. Code 
1895, § 1008; Belote v. State, 36 
Miss. 96, 116, 72 Am. Dec. 163; 
Garrard v. State, 50 Miss. 151; 
Stale V. Simas, 25 Nev. 432, 62 Pac. 
242; Laros v. Co}n. 84 Pa. 202; 
State V. Motley, 7 Rich. L. 327; 
Deathridgc v. State, 1 Sneed, 80; 
demons v. State, 4 Lea, 23. 

^ State V. Garvey, 28 La. Ann. 
925, 26 Am. Rep. 123; Jordan v. 
State, 32 Miss. 382; Murphy v. 
State, 63 Ala. 1 ; Banks v. State, 
84 Ah. 430, 4 So. 382; Lon'e v. 
State, 88 Ala. 8, 7 So. 97; Jones v. 
Stale. 75 Ga. 825; State v. Dooley, 



89 Iowa, 584, 57 N. W. 414'; State 
V. Mortimer, 20 Kan. 93; Rector v. 
Com. 80 Ky. 468; Belote v. State, 
36 Miss. 96, 72 Am. Dec. 163; 
Stage's Case, 5 N. Y. City Hall 
Rec. 177; State v. Winston, 116 N. 
C. 990, 21 S. E. 2,7; $late v. Mot- 
ley, 7 Rich. L. 327; McGlothlin v. 
State, 2 Coldw. 223; Massey v. 
Stale, 10 Tex. App. 645; State v. 
Height, 117 Iowa, 650, 59 L.R.A. 
437, 94 Am. St. Rep. 323, 91 N. W. 
935 ; Whitney v. Com. 24 Ky. L. 
Rep. 2524, 74 S. W. 257, 12 Am. 
Crim. Rep. 170; Com. v. James, 99 
Mass. 438; State v. Ruck, 194 Mo. 
416, 92 S. W. 706, 5 A. & E. Ann. 
Cas. 976. See State v. Knapp, 70 
Ohio St. 380, 71 N. E. 705, 1 A. & 
E. Ann. Cas. 819; Johnson v. State, 
119 Ga. 257, 45 S. E. 960; Taylor v. 



1398 



EVIDENCE IN CRIMINAL CASES. [CHAP. XIV. 



VII. How Far Extraneous Facts Reached Through an 
Inadmissible Confession may be Received. 

§ 678. Admissibility of inculpatory facts. — The rule is 
settled that, notwithstanding the inadmissibility of the con- 
fession, all facts discovered in consequence of the information 
given by the accused, and which go to prove the existence of 
the crime of which he is suspected, are admissible as testi- 
mony.^ Thus, where the accused, in confessing, points out 
or tells where the stolen property is ; ^ or, in case of homicide, 
states where the body can be found ; ^ or gives a clue to other 



Com. 19 Ky. L. Rep. 836, 42 S. W. 
1125; Com. v. Phillips, 26 Ky. L. 
Rep. 543, 82 S. V^^ 286; Whitley v. 
State, 78 Miss. 255, 53 L.R.A. 402, 
28 So. 852, 12 Am. Crim. Rep. 122; 
State V. Middleton, 69 S. C. 72, 48 
S. E. 35. 

1 Supra, § 677a. See Laros v. 
Com. 84 Pa. 200; Sampson v. State, 
54 Ala. 241 ; Spicer v. State, 69 Ala. 
159; demons v. State, 4 Lea, 23; 
Rhodes v. State, 11 Tex. App. 563. 

2 Murphy v. State, 63 Ala. 1 ; Gar- 
rard V. State, 50 Miss. 152; State 
V. George, 15 La. Ann. 145; Mc- 
Glothliit V. State, 2 Coldw. 223; 
Stage's Case, 5 N. Y. City Hall 
Rec. 177; People v. Hoy Yen, 34 
Cal. 176; Gates v. People, 14 111. 
433; Rector v. Com. 80 Ky. 468: 
State V. Winston, 116 N. C. 990, 21 
S. E. 37; State v. Mortimer, 20 
Kan. 93; Strait v. State, 43 Tex. 
486; Hudson v. State, 9 Yerg. 408, 
Yates V. State, 47 Ark. 172, 1 S. W. 
65 ; Rex v Warwickshall, 1 Leach, 
C. L. 263, 2 East, P. C. 658; Sel- 
vidge v. State, 30 Tex. 60; People 
V. Ah Ki, 20 Cal. 178; Banks v. 



State, 84 Ala. 430, 4 So. 382 ; Belofc 
V. State, 36 Miss. 96, 72 Am. Dec. 
163; State v. Lindsey, 78 N. C. 499; 
Van Buren v. State, 24 Miss. 516; 
United States v. Richard, 2 Cranch, 

C. C. 439, Fed. Cas. No. 16,154: 
Beery v. United States, 2 Colo. 186 , 
Rice V. State, 3 Heisk. 215 ; State 
V. Brick, 2 Harr. (Del.) 530; Tuck- 
er's Case, 5 N. Y. City Hall Rec 
164; Jackson's Case, 1 N. Y. City 
Hall Rec. 28; Deathridge v. State, 
1 Sneed, 75 ; Speights v. State, 1 
Tex. App. 551 ; Reg. v. Gould, 9 
Car. & P. 364 ; Duffy v. People, 26 
N. Y. 588; State v. Willis, 71 Conn. 
293, 41 Atl. 820; Rex v. Griffin. 
Russ. & R. C. C. 152. 

3 Grrfir^f V. State, 106 Ala. 44, 17 
So. 321 ; Loive v. State, 88 Ala. 8. 
7 So. 97; Cain's Case, 1 Craw. & 

D. C. C. (Jr.) 37, cited in 2 Heard. 
C. C. 617, note; Elisabeth v. State, 
27 Tex. 329; i?^^. v. Berriman, 6 
Cox, C. C. 388; State v. Mo/Z^y, 7 
Rich. L. 327; 5/af^ v. Crowson, 98 
N. C. 595. 4 S. E. 143; Mueller v. 
State, 16 Tex. App. 200; 1 PhiUipps, 
Ev. 411; Rex v. Warwickshall, 1 



% 678] 



CONFESSIONS. 



1399 



evidence which proves the case,* all such facts are admis- 
sible.* But few courts have questioned this rule.^ 

It is obvious that a search made as a consequence of infor- 
mation given by the accused must result in the discovery of 
the inculpatory facts, as otherwise no testimony, either as to 
the confession or as to the search instituted in consequence 
of it, is admissible.' In connection with the discovery of the 
alleged inculpatory facts, there should be proof, beyond a 
reasonable doubt, of the identity of the property, the body, 
or other fact. This is the rule with regard to larceny,* and 



Leach, C. L. 263, 2 East, P. C. 658 ; 
Rex V. Mosey, 1 Leach, C. L. 265, 
note; Rex v. Lockhart, 1 Leach, C. 
L. 386; Reg. v. Gould, 9 Car. & 
P. 364; Thiirtell's Case cited in 
Joy on Confessions, 84; Russell, 
Crimes, 861, 862; Com. v. Knapp, 

9 Pick. 496, 20 Am. Dec. 491 ; Duffy 
V. People, 26 N. Y. 589; State v. 
Brick, 2 Harr. (Del.) 530; State 
V. Crank, 2 Bail. L. 67, 23 Am. Dec. 
117; State v. Vaigneur. 5 Rich. L. 
391; Hudson v. State, 9 Yerg. 408; 
Deathridge v. State, 1 Sneed, 75; 
Jordan v. State, 32 Miss. 382; 
Belote V. State, 36 Miss. 96, 72 Am. 
Dec. 163; Jane v. Com. 2 Met. 
(Ky.) 30; Mountain v. State, 40 
Ala. 344; People v. Hoy Yen, 34 
Cal. 176; People v. Parton, 49 Cal. 
632; Fredrick v. State, 3 W. Va. 
695; Nolen v. State, 14 Tex. App. 
482, 46 Am. Rep. 247. 

^Reg. V. Lcatham, 8 Cox, C. C. 
498, 30 L. J. Q. B. N. S. 205 ; Rice 
V. State, 3 Heisk. 215; Strait v. 
State, 43 Tex. 486; Davis v. State, 

8 Tex. App. 510; Massey v. State. 

10 Tex. App. 645; State v. Morti- 
mer, 20 Kan. 93 ; Com. v. Knapp, 

9 Pick. 496, 20 Am. Dec. 491 ; Com. 



V. James, 99 Mass. 438; Jane v. 
Com. 2 Met. (Ky.) 30; State v. 
Garvey, 28 La. Ann. 925, 26 Am. 
Rep. 123; Mose v. State, 36 Ala. 
211; demons v. State, 4 Lea, 23. 

5 See notes 1, 2, 3, 4, this section. 

^ State V. Roberts, 12 N. C. (1 
Dev. L.) 259; Jordan v. State, 32 
Miss. 382; Rusher v. State, 94 Ga. 
363, 47 Am. St. Rep. 175, 21 S. E. 
593. 

' Rex V. Jenkins, Russ. & R. C. C. 
492 ; Rex v. Hearne, Car. & M. 109 ; 
Loyd V. State, 19 Tex. App. 137. 
See also Kennon v. State, 11 Tex. 
App. 356; Rains v. State, 33 Tex. 
Crim. Rep. 294, 26 S. W. 398; 
Crozvder v. State, 28 Tex. App. 51, 
19 Am. St. Rep. 811, 11 S. W. 835; 
State V. Due, 27 N. H. 256 ; Daniels 
V. State, 78 Ga. 98, 6 Am. St. Rep. 
238; JVilliams v. Com. 27 Gratt. 
997, 2 Am. Crim. Rep. 67; Mosebv 
V. Com. — Ky. — , 113 S. W. 850. 
See Jaynes v. People, 44 Colo. 535, 
99 Pac. 325, 16 A. & E. Ann. Cas. 
787; Brorvn v. Com. — Ky. — , 118 
S. W. 945; State v. Jacques, 30 R. 
L 578, 76 Atl. 652. 

^ State V. Due, 27 N. H. 256; 
State V. Gai~vcy, 28 La. Ann. 925, 



1400 EVIDENCE IN CRIMINAL CASES. [CHAP. XIV. 

in other crimes identification should be complete before ad- 
mission of the inculpatory facts. ^ 

But when the search reveals the inculpatory facts, and there 
is conclusive identification of such facts, this necessarily brings 
with it the reception in evidence of the accused's statements 
in giving the information.^" 

VIII. Admissions by Silence or Conduct. 

§ 678a. Admissions are not confessions. — The distinc- 
tion between a confession and an admission, as applied in 
criminal law, is not a technical refinement, but based upon the 
substantive differences of the character of the evidence educed 
from each. A confession is a direct acknowledgment of guilt 
on the part of the accused,^ and, by the very force of the 
definition, excludes an admission, which, of itself, as applied 
in criminal law, is a statement by the accused, direct or im- 
plied, of facts pertinent to the issue, and tending, in connec- 
tion wnth proof of other facts, to prove his guilt, but of it- 
self is insufiicient to authorize a conviction.^ 

26 Am. Rep. 123; IVhifley v. State. ceased, and it was afterwards con- 

78 Miss. 255, 53 L.R.A. 402, 28 So. clusively shown that the skeleton 

852, 12 Am. Crim. Rep. 122; Rex was planted by the detectives who 

V. Jones, Russ. & R. C. C. 152; Re.v secured the involuntary confession. 

V. Clarke, Car. C. L. 59; Walrath This is an illustration of conform- 

V. State, 8 Neb. 80; Williams v. ing the confession to the purposes 

Com. 27 Gratt. 997, 2 Am. Crim. of the detectives called upon to 

Rep. 67; Jordan v. State, 32 Mis.<. make proof, and is a strong argu- 

382. See Beery v. United States, 2 ment for complete identification of 

Colo. 186; Rex v. Griffin, Russ. & inculpatory facts, wherever found, 

R. C. C. 152; State v. Motley, 7 apparently, at least, in conformity 

Rich. L. 327. with the confession. 

9 There is on record in the nisi ^^ Murphy v. State, 63 Ala. 1; 

prius courts the fact that, in con- supra, § 6772. 

sequence of an involuntary confes- ^ Supra, § 622. 

sion, a skeleton was discovered ^ Ransoni v. State, 2 Ga. App. 

where the accused stated that he 826, 59 S. E. 101. 
had buried the body of the de- 



§ 678b] CONFESSIONS. 1401 

The principle of confessions has no application to admis- 
sions.^ It is necessary to observe the distinction in every case. 
The loose phraseology of courts, stating that a certain fact 
may be construed as an admission or a confession, is mislead- 
ing. Under the law, the court may instruct the jury as to 
the conclusive character of a confession; but, as to an ad- 
mission, the instruction must be as to its weight as a circum- 
stance in connection with other proof. Thus, silence under an 
accusation of crime may constitute conduct, or a circumstance 
from which guilt may be inferred.'* But such silence can never 
have the legal effect of a confession of a crime*. 

§ 678b. Silence as consent. — At all times where rules 
of conduct are prescribed for the people, and not by the people, 
inquisitors have taken advantage of their own questions to 
determine that the answer is favorable to themselves. When 
such questions were received in silence the inquisitor ex- 
claimed, Qui tacet consentire videtiir! or silence gives consent. 
This maxim is embedded in our common conversation, but 
when it became applicable to judicial proceedings, like all 
broad maxims, it was necessarily limited by qualifications that 
rendered it effective only on certain conditions. Originally 
it was a shrewd way of causing a man to give evidence against 
himself, and, as it has been accurately stated, "nothing can be 
more dangerous than this kind of evidence. It should always 
be received with caution ; and never ought to be, unless the 
evidence is of direct declarations, of that kind which naturally 
calls for contradiction, — some assertion made to the man with 
respect to his right, which by his silence he acquiesces in." ^ 

^Rex V. IVanvickshall, 1 Leach, S. E. 13; State v. Edwards, 13 S. 

C. L. 263. C. 30. 

^Phelan v. State, 114 Tenn. 483, ^ Moore v. Smith, 14 Serg. & R 

88 S. W. 1040. 388; Vail v. Strong, 10 Vt. 457; 

^ State V. Major, 70 S. C. 337, 50 Mattocks v. Lyman, 16 Vt. 113; 



1402 



EVIDENCE IN CRIMINAL CASES. [CHAP. XIV. 



The rule that silence gives consent may prevail in criminal 
cases on the broad ground that all circumstances indicating 
guilt are admissible, and possibly supported on the theory of 
admissions and conduct against interest. But the harsh rule 
prevails that whatever the accused may say in reply is not evi- 
dence in his favor, and his denials are rejected as hearsay as- 
sertions.^ A few rulings assert that if the accused denies the 
charge, or says nothing in explanation, these declarations may 
be given in evidence in his favor, to go to the jury for what 
they are worth.^ But the general rule is to exclude all such 
declarations as hearsay, as well as declarations favorable to 
the accused as shown by his conduct.* 



Com. V. Kenney, 12 Met. 235, 46 
Am. Dec. 672; Wiedemann v. Wal- 
pole [1891] 2 Q. B. 534, 40 Week. 
Rep. 114, 60 L. J. O. B. N. S. 762. 
^Ray V. State, 50 Ala. 104, 107; 
United States v. Cross, 9 Mackey, 
365, 376 ; Turner v. Com. 86 Pa. 54, 
71, 27 Am. Rep. 683 ; State v. Car- 
rington, 15 Utah, 480, 50 Pac. 526; 
People V. Ebanks, 117 Cal. 652, 40 
L.R.A. 269, 49 Pac. 1049; State v. 
Vandergraff, 23 La. Ann. 96; State 
V. Toby, 31 La. Ann. 756; State v. 
Dtifour, 31 La. Ann. 804; Oliver 
V. State, 17 Ala. 587, 595 ; Campbell 
V. State, 23 Ala. 44, 79; Hall v. 
State, 40 Ala. 698, 700, 706; Bird- 
song V. State, 47 Ala. 68. 71, 77; 
Jordan v. State, 81 Ala. 20, 23, 31, 
1 So. 577; Dorsey v. State, 110 Ala. 
38, 20 So. 450; White v. State, 111 
Ala. 92, 21 So. 330; Vaughn v. 
State, 130 Ala. 18, 30 So. 669 ; Peo- 
ple V. Montgomery, 53 Cal. 576; 
People V. Shaw, 111 Cal. 171, 43 
Pac. 593; Pinkard v. State, 30 Ga. 
759; Boston v. State, 94 Ga. 590, 
20 S. E. 98, 21 S. E. 603; Kennedy 



V. State, 101 Ga. 559, 28 S. E. 979; 
Lewis V. State, 4 Kan. 309; Com. v. 
Hersey, 2 Allen, 173, 177; Diliin v. 
People, 8 Mich. 357, 367; State 
V. Musick, 101 Mo. 260, 274, 14 S 
W. 212; State v. Smith, 114 Mo. 
406, 424, 21 S. W. 827; State v. 
Strong, 153 Mo. 548, 55 S. W. 78. 
13 Am. Crim. Rep. 278; State v. 
McLaughlin, 149 Mo. 19, 50 S. W. 
315; People v. Rathbun, 21 Wend. 
509, 519; State v. Wilcox, 132 N. C. 
1120, 44 S. E. 625; State v. Vaig- 
neiir, 5 Rich. L. 391, 403; State v. 
Bickle, 53 W. Va. 597, 45 S. E. 917. 
Compare post, §§ 1144, 1732, 1765, 
1781 ; post, § 367. 

3 State V. Worthington, 64 N. C. 
594. See Boston v. State, 94 Ga. 
590, 20 S. E. 98, 21 S. E. 603; 
Green's Trial, 7 How. St. Tr. 159. 
207; Barnard's Trial, 19 How. St 
Tr. 833. See State v. Vaignciir, 5 
Rich. L. 391. 

'^Oliver v. State, 17 Ala. 587. 
595; Campbell v. State, 23 Ala. 44. 
79; Hall v. State. 40 Ala. 698; Bird- 
song V. State, A7 Ala. 71 ; Jordan 



i 

I 



§ 679] 



CONFESSIONS. 



1403 



§ 679. Silence as admission, — The doctrine of silence 
as an admission, broadly stated, is as follows: If A, when in 
B's presence and hearing, makes a statement to which B listens 
in silence, interposing no objection, A's statement may be put 
in evidence against B whenever B's silence is of such a nature 
as to lead to the inference of assent.^ Silence under such an 



V. State, 81 Ala. 20, 1 So. 577; 
Henry v. State, 107 Ala. 22, 19 So. 
23; Dorsey v. State, 110 Ala. 38, 20 
So. 450; Vaughn v. State, 130 Ala. 
18, 30 So. 669; People v. Mont- 
gomery, 53 Cal. 576; People v. 
Shaw, 111 Cal. 171, 43 Pac. 593; 
Kennedy v. State, 101 Ga. 559, 23 
S. E. 979; State v. Mustek, 101 Mo. 
260, 274, 14 S. W. 212; State v. 
Sinith, 114 Mo. 406, 21 S. W. 827; 
State V. Strong, 153 Mo. 548, 55 S. 
W. 78, 13 Am. Crim. Rep. 278; 
People V. Rathbun, 21 Wend. 509; 
State V. Wilcox, 132 N. C. 1120, 44 
S. E. 625. See State v. Vaigneur, 
5 Rich. L. 391 ; Walker v. State, 139 
Ala. 56, 35 So. 1011 ; Allen v. State, 
146 Ala. 61, 41 So. 624; Thomas v. 
State, 47 Fla. 99, 36 So. 161 ; Sneed 
V. Territory, 16 Okla. 641, 86 Pac. 
70, 8 A. & E. Ann. Cas. 354; Wig- 
more, Ev. § 293. 

1 Rex V. Bartlett, 7 Car. & P. 832 ; 
Rea V. Missouri, 17 Wall. 532, 21 
L. ed. 707; State v. Reed, 62 Me. 
129; Com. v. Call, 21 Pick. 515, 32 
Am. Dec. 284; Com. v. Sliney, 126 
Mass. 49; Kelley v. People, 55 N. 
Y. 565, 14 Am. Rep. 342; Wright 
V. People, 1 N. Y. Crim. Rep. 462 ; 
Ettinger v. Com. 98 Pa. 338 ; Mur- 
phy V. State, 36 Ohio St. 628; State 
V. Walts. 52 Iowa, 227, 2 N. W. 
1102; State v. Devlin, 7 Mo. App. 
32; State v. Boiuman, 80 N. C. 432; 



Drttmright v. State, 29 Ga. 430; 
Kendrick v. State, 55 Miss. 436; 
Ford V. State, 34 Ark. 649; People 
V. McCrea, 32 Cal. 98; People v. 
Estrada, 49 Cal. 171 ; No on an v. 
5/a/(?, 1 Smedes & M. 562; Ingle 
V. State, 1 Tex. App. 307. See 
Bejarano v. ^'to/^, 6 Tex. App. 265 ; 
hoggins v. State, 8 Tex. App. 434; 
Jeffries v. State, 9 Tex. App. 598; 
Robins v. State, 9 Tex. App. 671 ; 
Reg. V. Nezvman, 1 El. & Bl. 268, 
Dears. C. C. 85, 22 L. J. Q. B. N. S. 
156, 17 Jur. 617, 3 Car. & K. 252; 
Taylor, Ev. § 828. See Neile v. 
Jakle, 2 Car. & K. 709 ; Campbell v. 
State, 55 Ala. 80; State v. Cleaves, 
59 Me. 300, 8 Am. Rep. 422; State 
V. Reed, 62 Me. 142. See State v. 
Swink, 19 N. C. (2 Dev. & B. L.) 
9; 5'fa/£? v. 5^o«r, Rice, L. 147; 
Donnelly v. 5to;c, 26 N. J. L. 463; 
Keith V. State, 27 Ga. 483; State 
V. Fra«, 20 Iowa, 267; People v. 
^/i Yute, 53 Cal. 613, 54 Cal. 89: 
Reg. V. Cramp, L. R. 5 Q. B. Div. 
307, 49 L. J. Mag. Cas. N. S. 44, 
42 L. T. N. S. 442, 28 Week. Rep. 
701, 14 Cox, C. C. 401, 44 J. P. 411 ; 
Barton v. State, 49 Tex. Crim. Rep. 
121, 90 S. W. 877 ; Hogsett v. State. 
40 Miss. 522; McUin v. United 
States, 17 App. D. C. 323; Com. v. 
Harvey, 1 Gray, 487; State v. Mu- 
stek, 101 Mo. 260, 14 S. W. 212; 
State V. Walker, 78 Mo. 380; State 



1404 



EVIDENCE IN CRIMINAL CASES. [CHAP. XIV. 



accusation is a circumstance to go to the jury on a question of 
guilt or innocence of the person who remains silent,^ and is 
a presumption of his acquiescence in the truth of the state- 
ment.' Such statement may be made by the prosecuting wit- 
ness ; * or by an accompHce ; ^ or by one of two persons acting 
in concert; ^ and even a confession by a joint defendant, after 
proof of conspiracy, made in the presence of, and impHcating, 
and not denied by, the other, iii the absence of objection may 
go in evidence as an admission.''^ The general rule is not af- 



V. Miller, 49 Mo. 505: People v. 
Koerner, 154 N. Y. 355, 48 N. E. 
730; State v. Senn, 32 S. C. 392, It 
S. E. 292; Browning v. State, 26 
Tex. App. 432, 9 S. W. 770; Sim- 
mons V. State, 129 Ala. 41, 29 So. 
929; Levison v. State, 54 Ala. 520; 
Williams v. State, 42 Ark. 380; 
People V. Ah Lung, 2 Cal. App. 273. 
83 Pac. 296; People v. Sullivan, 3 
Cal. App. 502, 86 Pac. 834; People 
V. Swaile, 12 Cal. App. 192, 107 Pac. 
134; Godwin v. State, — Del. — , 
74 Atl. 1101; Anthony v. State, 44 
Fla. 1, 32 So. 818; Drumright \. 
State, 29 Ga. 430; Moye v. State. 
66 Ga. 740; Watt v. People, 126 111. 
9, 1 L.R.A. 403, 18 N. E. 340 ; State 
V. Dennis, 119 Iowa, 688, 94 N. W. 
235; State v. Grebe, 17 Kan. 458; 
Com. V. Funai, 146 Mass. 570, 16 N. 
E. 458; Com. v. Dezvhirst, 190 Mass. 
293, 76 N. E. 1052; Spivey v. Stat.^, 
58 Miss. 743; Donnelly v. State, 26 
N. J. L. 601 ; McCusker v. Carlson, 
20 N. Y. Week. Dig. 424; M'Kee v. 
People, 36 N. Y. 113; State v. Lud- 
wick, 61 N. C. (Phil). L.) 401; 
State V. Crockett, 82 N. C. 599; 
Kendrick v. State, 9 Humph 723 ; 
State V. Major. 70 S. C. 387. 50 S. 
E. 13; State v. Dillon, 74 Iowa, 653. 



38 N. W. 525; State v. Suggs, 89 
N. C. 527; Clark v. State, 117 Ga 
254, 43 S. E. 853; Brozm v. State, 
32 Tex. Crim. Rep. 119, 22 S. W. 
596. 

For note on question of uncon- 
tradicted statements in presence of 
accused as confession, see 25 L.R.A 
(N.S.) 542. 

2 State V. Belknap, 39 W. Va. 427, 
19 S. E. 507; Haberty v. State, 8 
Ohio C. C. 262; Low v. State, 103 
Tenn. 127, 65 S. W. 401, 15 Am. 
Crim. Rep. 21 ; Deathridge v. State, 
1 Sneed, 75; Com. v. Brozvn, 121 
Mass. 69; Com. v. Galavan, 9 Allen. 
271 ; Musfelt v. State, 64 Neb. 445. 
90 N. W. 237; State v. Major, 70 
S. C. 387, 50 S. E. 13; State v. 
Dillon, 74 Iowa, 653, 38 N. W. 525. 

3 State V. Suggs. 89 N. C. 527. 

* State V. Worthen, 124 Iowa, 
408, 100 N. W. 330; State v. Bur- 
ton, 94 N. C. 947 ; State v. Patrick, 
107 Mo. 147, 17 5. W. 666. See 
Sylvester v. State, 71 Ala. 17. 

^Com. V. Call, 21 Pick. 515, 32 
Am. Dec. 284; State v. Burns, 124 
Iowa, 207, 99 N. W. 721. 

fi Robins v. State, 9 Tex. App. 
671 ; People v. Estrada, 49 Cal. 171. 

"^ State V. Johnson, 35 La. Ann. 



§ 679] 



CONFESSIONS. 



1405 



fected by the fact that the accusation acquiesced in is made by 
a person who is not competent as a witness.' So the declara- 
tions of an injured person, who afterwards died of his in- 
juries, made in the presence of the accused, are competent 
evidence on the trial for the homicide.^ The ground of ad- 
mission of such statements is expressed by the courts in vary- 
ing phraseology, such as, the omission to controvert the state- 
ment affords an inference of its truth; silence under the ac- 
cusation is regarded as an acquiescence in its truth and an im- 
plied admission of guilt; it is not admitted because the state- 
ment was made, but because the accused impliedly ratified it 
and adopted it as his own statement. Such accusations are 
admissible in evidence, not as evidence of the truth of the 
accusation, but to show that it calls for a reply, and to show 
the acquiescence of the accused.^" 



842; Anthony v. State, 44 Fla. 1, 32 
So. 818; Sparf v. United States, 156 
U. S. 51, 39 L. ed. 343, 15 Sup. Ct. 
Rep. 273, 10 Am. Crim. Rep. 168; 
Rex V. Bromhead, 71 J. P. 103; 
People V. Morley, 8 Cal. App. 372, 
97 Pac. 84; State v. Bozvers, 17 
Iowa, 46. 

8 Rex V. Smithies, 5 Car. & P. 
332; Rex v. Bartlett, 7 Car. & P. 
832; People v. McCrea, 32 Cal. 98; 
Rex V. Bexley, 70 J. P. 263 ; Rich- 
ards V. State, 82 Wis. 172, 51 N. W. 
652; Spencer v. State, 20 Ala. 24; 
State V. Middleham, 62 Iowa, 150, 
17 N. W. 446; Joiner v. State, 119 
Ga. 315, 46 S. E. 412 ; State v. Rec- 
ord, 151 N. C. 695, 25 L.R.A.(N.S.) 
561, 65 S. E. 1010, 19 A. & E. Ann. 
Cas. 527; State v. Jerome, 82 Iowa, 
749, 48 N. W. 722. But see State 
V. Richardson, 194 Mo. 326, 92 S. 
W. 649. 

^ State V. Overton, 75 N. C. 200; 



People V. Young, 108 Cal. 8, 41 Pac. 
281; Weightnovel v. State, 46 Fla. 
1, 35 So. 856; Gannon v. People, 
127 111. 507, 11 Am. St. Rep. 147, 
21 N. E. 525; State v. Dillon, 74 
Iowa, 653, 38 N. W. 525 ; Kendrick 
V. State, 55 Miss. 436; Diebel v. 
State, — Tex. Crim. Rep. — , 24 S. 
W. 26; People v. Meyers, 5 N. Y. 
Crim. Rep. 120, 7 N. Y. S. R. 217 ; 
People V. McCrea, 32 Cal. 98 ; Peo- 
ple V. Szvaile, 12 Cal. App. 152, 107 
Pac. 134; Kirby v. State, 89 Ala. 
63, 8 So. 110; Amos v. State, 123 
Ala. 50, 26 So. 524; Ackerson v. 
People, 124 111. 563, 16 N. E. 847; 
State V. Mimston, 35 La. Ann. 888 ; 
Com. V. Brailey, 134 Mass. 527 ; 
State V. Rosa, 72 N. J. L. 462, 62 
Atl. 695; Ettinger v. Com. 98 Pa. 
338 ; Richards v. State, 82 Wis. 172, 
51 N. W. 652. 

^^ Davis V. State, 131 Ala. 10, 31 
So. 569; Ackerson v. People, 124 



1406 



EVIDENCE IN CRIMINAL CASES. [CHAP. XIV. 



Where such accusations are admitted in evidence, the court 
should instruct the jury that such accusations or statements 
are limited, as evidence, to the purpose of showing that the 
accused acquiesced in them, but that they are not evidence of 
the facts stated." However, such statements are more logic- 
ally admissible as res gestce of the offense. ^^ 

§ 680. Circumstances under which the accusation is 

made. — To give to silence the effect of an admission, the 
party charged must have been in a position to explain.^ "Be- 
fore acquiescence in the language or conduct of others can 
be assumed as a concession of the truth of any particular 
statement, or of the existence of any particular fact, it must 
plainly appear that the language was heard and the conduct 
understood." ^ 



111. 563, 16 N. E. 847; Merriweather 
V. Com. 118 Ky. 870, 82 S. W. 592. 
4 A. & E. Ann. Cas. 1039: McUin 
V. United States, 17 App. D. C. 323 ; 
State V. Senn, 32 S. C. 392, 11 S. E. 
292; People v. Ah Yute, 53 Cal. 
613 ; People v. Sullivan, 3 Cal. App. 
502, 86 Pac. 834; People v. Abbott, 
— Cal. — 4 Pac. 769; People v. 
Estrada, 49 Cal. 171 ; McCusker v. 
Carlson, 20 N. Y. Week. Dig. 424; 
People V. Mallon, 103 Cal. 513, 37 
Pac. 512; IVatt v. People, 126 111. 
9, 1 L.R.A. 403, 18 N. E. 340 ; Peo- 
ple V. Koerner, 154 N. Y. 355, 48 
N. E. 730; People v. Kennedy, 164 
N. Y. 456, 58 N. E. 652 ; People v. 
Hnghson, 154 N. Y. 153, 47 N. E. 
1092; Rex v. Bromhead, 71 J. P. 
103; Speer v. State, 4 Tex. App. 
474; Cobb v. State, 27 Ga. 648. 

11 People V. Mallon, 103 Cal. 513, 
37 Pac. 512; Conner v. State, 17 
Tex. App. 14; Phelan v. State, 114 
Tenn. 483, 88 S. W. 1040; People 



V. Cascone, 185 N. Y. 317, 78 N. E. 
287. 

^^Surber v. State, 99 Ind. 71; 
State V. McCourry, 128 N. C. 594, 
38 S. E. 883; State v. Duncen, 116 
Mo. 288, 22 S. W. 699. See State 
V. Devlin, 7 Mo. App. 32; State v. 
Nash, 10 Iowa, 81, s. c. 7 Iowa. 347. 
See Sylvester v. State, 71 Ala. 17. 

1 Com. V. Kenney, 12 Met. 235, 46 
Am. Dec. 672; Com. v. Harvey, 1 
Gray, 487; Larry v. Sherburne, 2 
Allen, 35 ; Drury v. Hervey, 126 
Mass. 519 ; Donnelly v. State, 26 N. 
J. L. 601 ; Slattery v. People, 76 III. 
217, 1 Am. Crim. Rep. 29, and note, 
p. 31 ; Sylvester v. State. 71 Ala. 17; 
Loggins v. State, 8 Tex. App. 434; 
Boyd V. Belton, 8 Ir. Eq. Rep. 113; 
Com. V. Braley, 1 Mass. 103 ; Com.. 
V. Galavan, 9 Allen, 271 ; O'Hearn 
V. State, 79 Neb. 513, 25 L.R.A. 
(N.S.) 542, 113 N. W. 130. 

^Com. V. Harvey, 1 Gray, 487; 
Long V. State, 13 Tex. App. 211. 



§ 680] 



CONFESSIONS. 



1407 



The doctrine, then, of acquiescence by silence or conduct, 
is subject to the following limitations : 

First, such accusations or statements, in the presence of 
accused, are competent only when the accused hears them and 
fully comprehends their effect,' and this means not merely 
in his bodily presence, but in his hearing and understanding.* 
He must understand that he himself is accused of the criminal 
act,^ and it must be shown beyond a reasonable doubt that 
the language was heard or the conduct understood by the ac- 
cused.^ Thus, when a person is asleep,' or so intoxicated as to 



3 People V. Kennedy, 164 N. Y. 
456, 58 N. E. 652; People v. Hol- 
felder, 5 N. Y. Crim. Rep. 179, 5 
N. Y. S. R. 488 ; People v. Koerner, 
154 N. Y. 355, 48 N. E. 730; 
Spencer v. State, 20 Ala. 24; 
Bloomer v. State, 75 Ark. 297, 87 
S. W. 438; Wcightnovcl v. State, 
46 Fla. 1, 35 So. 856; Jones v. State. 
2 Ga. App. 433, 58 S. E. 559 ; Sim- 
mons V. State, 115 Ga. 574, 41 S. E. 
983; Jones v. State, 65 Ga. 148; 
Eaton V. Com. 122 Ky. 7, 90 S. W. 
972, 12 A. & E. Ann. Cas. 874; 
Com. V. Kenney, 12 Met. 235, 46 
Am. Dec. 672; Com. v. Harwood, 4 
Gray, 41, 64 Am. Dec. 49; Irving 
V. State, 92 Miss. 662, 47 So. 518; 
State V. Jackson, 150 N. C. 831, 64 
S. E. 376 ; Frasier v. State, 52 Tex. 
Crim. Rep. 131, 105 S. W. 508; 
O'Quinn v. State, 55 Tex. Crim. 
Rep. 18, 115 S. W. 39. 

^ Lanergan v. People, 39 N. Y. 
39, 5 Abb. Pr. N. S. 113; People v. 
Powell, 87 Cal. 348, 11 L.R.A. 75, 
25 Pac. 481. 

^ Hanna v. State, 46 Tex. Crim. 
Rep. 5, 79 S. W. 544; Lumpkin v. 
State, 125 Ga. 24, 53 S. E. 810; 
Merriweather v. Com. 118 Kv. 870, 



82 S. W. 592, 4 A. & E. Ann. Cas. 
1039. 

^Barton v. State, 49 Tex. Crim. 
Rep. 121, 90 S. W. 877; O'Quinn v. 
State, 55 Tex. Crim, Rep. 18, 115 
S. W. 39 ; Bookser v. State, 26 Tex. 
App. 593, 10 S. W. 219; Sauls v. 
State, 30 Tex. App. 496, 17 S. W. 
1066; Long v. State, 13 Tex. App. 
211; State v. Blackburn, — Del. — , 
75 Atl. 536; VVeightnovel v. State, 
46 Fla. 1, 35 So. 856; Irving v. 
State, 92 Miss. 662, 47 So. 518; 
People V. Koerner, 154 N. Y. 355, 
48 N. E. 730; Hill v. ^tna L. Ins. 
Co. 150 N. C. 1, 63 S. E. 124; Kel- 
ley V. People, 55 N. Y. 565, 14 Am. 
Rep. 342; Com. v. Kenney, 12 Met. 
235, 46 Am. Dec. 672; People v. 
Minisci, 12 N. Y. S. R. 719; Peo- 
ple V. Bissert, 71 App. Div. 118, 75 
N. Y. Supp. 630, 172 N. Y. 643, 65 
N. E. 1120; Ingle v. State, 1 Tex. 
App. 307; F elder v. State, 23 Tex. 
App. 477, 59 Am. Rep. 777, 5 S. W. 
145 ; Frasier v. State, 52 Tex. Crim. 
Rep. 131, 105 S. W. 508; State v. 
Baruth, 47 Wash. 283, 91 Pac. 977 ; 
Tate V. State, 95 Miss. 138, 48 So. 
13; People v. Cascone, 185 N. Y. 
317, 78 N. E. 287. 

"^ Lanergan v. People, 39 N. Y. 



1408 



EVIDENCE IN CRIMINAL CASES. [CHAP. XIV. 



be unable to comprehend,' or deaf,^ or did not understand 
the language spoken,^" he cannot be prejudiced by statements 
or accusations made in his presence. 

Second, such accusations and statements are not evidence 
against the accused, where he remains silent when they are 
uttered in the course of judicial proceedings, where he is not 
at liberty to interpose and contradict them, and his silence can- 
not be considered as an admission of their truth, even though 
he is a party to the action." 



39 ; supra, § 665 ; People v. Koer- 
ner, 154 N. Y. 355, 48 N. E. 730; 
Bloomer v. State, 75 Ark. 297, 87 
S. W. 438; Territory v. Big Knot 
On Head, 6 Mont. 242, 11 Pac. 670; 
People V. Isso, 39 N. Y. S. R. 166, 
14 N. Y. Supp. 906; State v. Ep- 
stein, 25 R. I. 131, 55 Atl. 204, 15 
Am. Crim. Rep. 10; Mixon v. State, 
— Tex. Crim. Rep. — 31 S. W. 
408. 

^ State V. Perkins, 10 N. C. (3 
Hawks) 2)77 ; supra, § 676. 

^ Tufts V. Charlestown, 4 Gray, 
537; Com. v. Galavan, 9 Allen, 271 ; 
Berry v. State, 10 Ga. 511. 

1" See note 7, this section. 

^^ Child V. Grace, 2 Car. & P. 
193 ; Rex v. Turner, 1 Moody, C. C. 
347 ; Rex v. Appleby, 3 Starkie, 33 ; 
sec Simpson v. Robinson, 12 Q. B. 
512, 18 L. J. Q. B. N. S. 73, 13 
Jur. 187; Reg. v. Coyle, 7 Cox, C. 
C. 74; United States v. Brown, 4 
Cranch, C. C. 508, Fed. Cas. No. 
14,660; Com. v. Kenney, 12 Met. 
235, 46 Am. Dec. 672; Com. v. 
Walker, 13 Allen, 570; Bob v. 
State, 32 Ala. 560; Noonan v. State, 
1 Smedes & M. 562; Broyles v 
State, 47 Ind. 251. See Peeople v. 
Willett, 92 N. Y. 29, s. c. 27 Hun, 



469, 1 N. Y. Crim. Rep. 355; supra, 
§§ 230, 668, 680; Leggett v. Schwab. 
Ill App. Div. 341, 97 N. Y. Supp. 
805 ; Kelley v. People, 55 N. Y. 565, 
14 Am. Rep. 342; Broyles v. State, 
47 Ind. 251 ; State v. Hale, 156 Mo. 
102, 56 S. W. 881 ; State v. Mullins, 
101 Mo. 514, 14 S. W. 625; Horan 
V. Brynes, 72 N. H. 93, 62 L.R.A. 
602, 101 Am. St. Rep. 670, 54 Atl. 
945; State v. Senn, 32 S. C. 392, 11 
S. E. 292; State v. Edwards, 13 S. 
C. 30; State v. Gilbert, 36 Vt. 145; 
Reg. V. Mitchell, 17 Cox, C. C. 503 ; 
Com. V. Zorambo, 205 Pa. 109, 54 
Atl. 716, 13 Am. Crim. Rep. 392; 
State V. H oiling sw or th, 156 Mo. 
178, 56 S. W. 1087; State v. Hud- 
speth, 150 Mo. 12, 51 S. W. 483; 
State V. Musick, 101 Mo. 271, 14 
S. W. 212; United States v. Brown, 
4 Cranch, C. C. 508, Fed. Cas. No. 
14,660; State v. Smith, 30 La. Ann. 
457 ; Rex v. Turner, 1 Moody, C. C. 
347; Child v. Grace, 2 Car. & P. 
193 ; McElmiirray v. Turner, 86 Ga. 
215, 12 S. E. 359; Rex v. Appleby, 
3 Starkie, 33 ; Reg. v. Swinnerton, 
Car. & M. 593; Bell v. State, 93 
Ga. 557, 19 S. E. 244 ; Com. v. Bur- 
ton, 183 Mass. 461, 67 N. E. 419; 
State V. Good, 132 Mo. 114, ZZ S. 



§ 680] 



CONFESSIONS. 



1409 



Third, such accusations and statements are not evidence 
against the accused where he remains silent when they are 
uttered, at a time when he is in custody or under arrest on a 
criminal charge, as he has the right to keep silence as to the 
crime, and is not called upon to reply to it, nor to contradict 
such statements.^^ 

Fourth, such accusations and statements cannot be used as 
evidence against the accused where he was silent through fear, 
or believed that his security was best promoted by silence, or 
where he was silent under threats, or in the presence of an 
angry crowd, or had promised to keep silent, or was silent 
under advice of his counsel.^^ 



i 



W. 790; State v. Paxton, 126 Mo. 
514, 29 S. W. 70S. 

^Com. V. Walker, 13 Allen, 570; 
Com. V. Kenney, 12 Met. 235, 46 
Am. Dec. 672; Com. v. McDermott, 
123 Mass. 440, 25 Am. Rep. 120; 
Com. V. Brown, 121 Mass. 69; su- 
pra, § 679; O'Hearn v. State, 79 
Neb. 513, 25 L.R.A.(N.S.) 542, 113 
N. W. 130; State v. Sadler, 51 La. 
Ann. 1397, 26 So. 390 ; State v. £.y- 
toup, 39 La. Ann. 906, 3 So. 124; 
State V. Carter, 106 La. 407, 30 So. 
895 ; State v. Diskin, 34 La. Ann. 
919, 44 Am. Rep. 448; State v. Kel- 
lehcr, 201 Mo. 614, 100 S. W. 470; 
State V. Swisher, 186 Mo. 1, 84 S. 
W. 911; State v. Foley, 144 Mo. 
600, 46 S. W. 7ZZ; State v. Mur- 
ray, 126 Mo. 611, 29 S. W. 700; 
State V. Hozvard, 102 Mo. 142, 14 
S. W. 937; State v. Epstein, 25 R. 
I. 131, 55 Atl. 204, 15 Am. Crim. 
Rep. 10; Denton v. State, 42 Tex. 
Crim. Rep. 427, 60 S. W. 670; R. 
V. McCraw, 12 Can. Crim. Cas. 253 ; 
State V. Munston, 35 La. Ann. 888 ; 
Fulcher v. State, 28 Tex. App. 465, 
Crim. Ev. Vol. II.— 89. 



13 S. W. 750 ; Simmons v. State, 50 
Tex. Crim. Rep. 527, 97 S. W. 1052 ; 
Guinn v. State, 39 Tex. Crim. Rep. 
257, 45 S. W. 694 ; Gardner v. State, 
— Tex. Crim. Rep. — , 34 S. W. 
945 ; Pryor v. State, 40 Tex. Crim. 
Rep. 643, 51 S. W. 375; Funder- 
burk V. State, — Tex. Crim. Rep. 
— , 61 S. W. 393 ; State v. McCul- 
lum, 18 Wash. 394, 51 Pac. 1044; 
State V. Weaver, 57 Iowa, 730, 11 
N. W. 675; Graham v. State, 118 
Ga. 807, 45 S. E. 616; People v. 
Williams, 133 Cal. 165, 65 Pac. 323 ; 
Merriweather v. Com. 118 Ky. 870, 
82 S. W. 592, 4 A. & E. Ann. Cas. 
1039 ; Porter v. Com. 22 Ky. L. Rep. 
1657, 61 S. W. 16. 

13 Com. V. Kenney, 12 Met. 235, 
46 Am. Dec. 672 ; R. v. McCraw, 12 
Can. Crim. Cas. 253; Flanagin v. 
State, 25 Ark. 92; Jones v. State, 
2 Ga. App. 433, 58 S. E. 559; 
Sprouse v. Com. 132 Ky. 269, 116 
S. W. 344; S lattery v. People, 76 
111. 217, 1 Am. Crim. Rep. 29; Peo- 
ple V. Elster, — Cal. — , 3 Pac. 884 ; 
Com. V. Harvey, 1 Gray, 487; Peo- 



1410 



EVIDENCE IN CRIMINAL CASES. [CHAP. XIV. 



Fifth, the statement or accusation must be direct, and of a 
character that would naturally call for action or reply," and 
must relate to the particular offense charged,^^ and must be 
addressed to, and intended to affect, the accused, and not 
arise in conversation or discussion between third parties ; ^^ 
nor, generally, is such silence deemed to be an assent when it 
is explicable on other grounds than those of consciousness of 
guilt." 



pie V. Kennedy, 164 N. Y. 456, 58 
N. E. 652; People v. Cascone, 185 
N. Y. 317, 78 N. E. 287 ; People v. 
Kessler, 13 Utah, 69, 44 Pac. 97; 
People V. 'Young, 72 App. Div. 9, 
76 N. Y. Supp. 275 ; Geiger v. State, 
70 Ohio St. 400, 71 N. E. 721, 25 
Ohio C. C. 742 (reversed) ; People 
V. Smith, 172 N. Y. 210, 64 N. E. 
814; Bob v. Smith, 32 Ala. 560; 
Reg. V. Jankowski 10 Cox, C. C. 
365; Wright v. State, 37 Tex. Crini. 
Rep. 627, 40 S. W. 491. 

1* Crowell V. State, 56 Tex. Crini. 
Rep. 480, 120 S. W. 897 ; Raymond 
V. State, 154 Ala. 1, 45 So. 895; 
Bob V. State, 32 Ala. 560; Lawson 
V. State, 20 Ala. 65, 56 Am. Dec 
182; Brantley v. State, 115 Ga. 229, 
41 S. E. 695 ; State v. Glahn, 97 Mc. 
679, 11 S. W. 260; Franklin v. Com. 
105 Ky. 237, 48 S. W. 986; Log- 
gins V. State, 8 Tex. App. 434; 
Lumpkin v. State, 125 Ga. 24, 53 S. 
E. 810; Cotn. v. Trefethen, 157 
Mass. 180, 24 L.R.A. 235, 31 N. E. 
961 ; People v. Koerner, 154 N. Y. 
355. 48 N. E. 730; Phelan v. State, 
114 Tenn. 493, 88 S. W. 1040. 

^^McAdory v. State. 62 Ala. 154; 
State V. Baruth, A7 Wash. 283, 91 
Pac. 977; State v. Shuford, 69 N. 
C. 486; Com. v. Trefethen, 157 



Mass. 180, 24 L.R.A. 235, 31 N. E. 
961 ; Bookser v. State, 26 Tex. App. 
593, 10 S. W. 219; Com. v. Roberts. 
108 Mass. 301; Davis v. State, 85 
Miss. 416, 37 So. 1018; Reg. v. 
Newman, 1 El. & Bl. 268, Dears. 
C. C. 85, 3 Car. & K. 252, 22 L. J. 
Q. B. N. S. 156, 17 Jur. 617; State 
V. Jackson, 150 N. C. 831. 64 S. E. 
376; Reg. v. Smith, 18 Cox, C, C. 
470; Hanna v. State, 46 Tex. Crim. 
Rep. 5, 79 S. W. 544; Miller v. 
State, 97 Ga. 653, 25 S. E. 366; 
Bennett v. State, 39 Tex. Crim. 
Rep. 650, 48 S. W. 61; Nicks v. 
State, 46 Tex. Crim. Rep. 241, 79 
S. W. 35. 

^^ People V. Koerner, 154 N. Y. 
355, 48 N. E. 730; Kelley v. People. 
55 N. Y. 565, 14 Am. Rep 342; Log- 
gins V. State, 8 Tex. App. 434; 
State V. Young, 99 Mo. 666, 12 S. 
W. 879; State v. Ethridge, 188 Mo. 
352, 87 S. W. 495 ; Lawson v. State. 
20 Ala. 65, 56 Am. Dec. 182; Sim- 
mons V. State, 115 Ga. 574, 41 S. E. 
983; Com. v. Kenney, 12 Met. 235, 
46 Am. Dec. 672; Noonan v. State, 
1 Smedes & M. 562. 

1'^ Com. V. Harvey, 1 Gray, 487 ; 
Com. V. Kenney, 12 Met. 235, 46 
Am. Dec. 672 ; Donnelly v. State, 26 
N. J. L. 601 ; Slattery v. People, 76 



§§ 681,682] CONFESSIONS. 1411 

§ 681. Silence where statute permits accused to tes- 
tify. — A party is not, at common law, in any way bound 
by the testimony of witnesses called by him and examined 
on a trial. ^ Even under statutes permitting the parties to be 
witnesses, such evidence, it has been held in Pennsylvania, 
cannot be employed in other suits against the party introducing 
it.^ But it has been otherwise held in Maine, in respect to 
the statements of witnesses made at a prior hearing of the same 
case, which statements the party is at liberty to contradict, 
he being entitled to be sworn as a witness in the case.^ But 
silence of this kind by a defendant on the trial of a criminal 
issue cannot, in any view, be rightfully admitted against him, 
under the statutes providing that his nontestifying shall not 
be used against him, he not offering himself as a witness.* 
But if the defendant, having full opportunity to do so, fail, 
when on the stand, to controvert that which was testified 
against him, this may be regarded, when the matter is one 
within his personal knowledge, as an admission of the truth 
of such testimony.^ 

§ 682. Letters in possession of accused. — The fact that 
an unanswered letter or other paper is found in the custody of 

111. 217, 1 Am. Crim. Rep. 29. See ^ Blanchard v. Hodgkins. 62 Me> 

State V. Clark, 54 N. H. 456, 1 Am. 120. 

Crim. Rep. 34; Wharton, Ev. § * Post, § 435. 

680; Com. v. Sliney, 126 Mass. 49. 5 Comstock v. State, 14 Neb. 205, 

^Melen v. Andrezvs, Moody & 15 N. W. 355; State v. Wood, 132 

M. 336, 31 Revised Rep. 736; Re.v Mo. 114, 33 S. W. 790; State v. 

V. Appleby, 3 Starkie, 33; Rex v. Paxton, 126 Mo. 514, 29 S. W. 705; 

Turner, 1 Moody, C. C. 347; Child McGuire v. People, 3 Hiin, 213; 

V. Grace, 2 Car. & P. 193 ; Reg. v. State v. Cleaves, 59 Me. 300, 8 Am. 

Swinnerton. Car. & M. 593; Com. Rep. 422; People v. Banker, 2 

V. Kentiey, 12 Met. 237, 46 Am. Dec. Park. Crim. Rep. 26 ; Casteel v. 

672. State, — Ark. — , 88 S. W. 1004; 

2 See Ayres v. Wattson, 57 Pa. Rex v. Edmunds, 6 Car. & P. 164. 
3^)0 : McDermolt v. Hoffman, 70 
Pa. 52. 



1412 



EVIDENCE IN CRIMINAL CASES. [CHAP. XIV. 



a party, but not acknowledged by him, is not ground for the 
admission of the paper as evidence against him.^ Were it 
admitted, an innocent man might, by the artifices of others, 
be charged with a prima facie case of guilt, which he might 
find it difficult to repel.^ It is otherwise, however, when the 
party addressed in any way invited the sending to him of the 
letter;' or when there is any ground to infer he acted on the 
letter.* Where such tacit recognition is claimed, the whole 
conversation or correspondence which constitutes the recogni- 
tion must be given.* 

§ 683. Admissions by conduct. — The conduct of the ac- 
cused under an accusation of crime has an evidentiary value, 
and where it tends to show guilt, either by implication or ad- 
mission, it is competent evidence against him.^ All that is said 



^ United States v. Grand ell, 4 
Cranch, C. C. 683, Fed. Cas. No. 
14,885; Com. v. Edgerly, 10 Allen, 
184; People v. Green, 1 Park. Crim. 
Rep. 11; People v. Thorns, 3 Park. 
Crim. Rep. 256. 

2 See Rex v. Hevey, 1 Leach, C. 
C. 232; Rex v. Pliimer, Russ. & R. 
C. C. 264. 15 Revised Rep. 741 ; Doc 
ex dem. Frankis v. Frankis, 11 Ad. 
& El. 795, 3 Perry & D. 565, 9 L. J. 
Q. B. N. S. 177; Smith v. Shoe- 
maker, 17 Wall. 630, 21 L. ed. 717; 
Com. V. Eastman, 1 Cush. 189, 48 
Am. Dec. 596; Button v. Woodman, 
9 Cush. 262, 57 Am. Dec. 46; Rob- 
inson V. Fitchburg & W. R. Go. 7 
Gray, 92; Fearing v. Kimball, 4 
Allen, 125, 81 Am. Dec. 690; Com.. 
V. Edgerly, 10 Allen, 184; People 
V. Green, 1 Park Crim. Rep. 11; 
Waring v. United States Teleg. Go. 
44 How. Pr. 69; Fairlie v. Denton, 
3 Car. & P. 103; Reg. v. Hare, 3 



Cox, C. C. 247; O'Hearn v. State. 
79 Neb. 513, 25 L.R.A.(N.S.) 542. 
113 N. W. 130. 

^Rcg. V. Cooper, L. R. 1 Q. B 
Div. 19, 45 L. J. Mag. Cas. N. S. 
15, 33 L. T. N. S. 754, 24 Week. 
Rep. 279, 13 Cox, C. C. 123; Reg. 
V. Jones, 1 Den. C. C. 551, 19 L 
L. J. Mag. Cas. (N. S.) 162, Temple 
& M. 270, 3 Car. & K. 346, 4 New 
Sess. Cas. 953, 14 Jur. 533, 4 Cox, 
C. C. 198; Rex v. Biirdctt. 4 Barn. 
& Aid. 179. 

See Com. v. Eastman, 1 Cush. 
189, 48 Am. Dec. 596. See distinc- 
tions taken, § 695, post. 

^Hewitt V. Piggott, 9 Car. & P. 
75 ; T coke's Trial, 25 How. St. Tr. 
120; Rex v. Watson, 2 Starkie, 
144; Smith v. Shoemaker. 17 Wall. 
630, 21 L. ed. 717; Com. v. Water- 
man, 122 Mass. 43. 

^Mattocks V. Lyman, 16 Vt. 113. 

^ Htiggins v. State, 41 Ala. 393; 



§ 683a] CONFESSIONS. 1413 

or done in the presence of the accused charged with the of- 
fense, explaining the conduct of the defendant, is properly ad- 
missible,^ where there is an indication of a consciousness of 
guilt; and the number of such indications cannot be limited, 
or their character or nature defined,^ as they vary with every 
case. In the same line of admission by conduct is the act 
of accused in hiding stolen property and in flight.* Where 
a question arose as to whether or not it was necessary to sta- 
tion a flagman at a railway crossing, the fact that a flagman 
had been so stationed by the company (he being absent at 
the time of the collision), is held to be an admission by the 
company that a flagman should be so placed.'^ 

§ 683a. Admissions; questions of law and fact. — It has 

been held that whether or not certain conduct or acquiescence 
constitutes an admission is a preliminary question for the 
court to determine before admitting the testimony;^ but the 
prevailing rule seems to be that whether or not conduct or 
silence is acquiescence is a question of fact for the jury, and 

State V. Major. 70 S. C. 387, 50 S. Mich. 69, 23 N. W. 594, 6 Am. 

E. 13 ; State v. Hill, 134 Mo. 663, Crim. Rep. 272 ; State v. Carroll, 30 

36 S. W. 223 ; State v. Bradley, 64 S. C. 85, 14 Am. St. Rep. 883, 8 

Vt 466, 24 Atl. 1053: People v S. E. 433; Com. v. Brozvn, 121 

Ah Fook, 64 Cal. 380, 1 Pac. 347; Mass. 69; Com. v. Coughlin, 182 

Humphrey v. State, 47 Tex. Crim. Mass. 558, 66 N. E. 207; Heard v. 

Rep. 262, 83 S. W. 187 ; State v. State, 59 Miss. 545. 

Dennis, 119 Iowa, 688, 94 N. W. ^ McAdory \. State, 62 AX^l. ISA. 

235; Rex v. Bexley, 70 J. P. 263; * See post, §§ 748-751. 

State V. Mortensen, 26 Utah, 312, ^ Readman v. Conway, 126 Mass. 

7Z Pac. 562, 633; People v. Ah 374; McGrath v. New York, C. & 

Lung, 2 Cal. App. 278, %2> Pac 296. H. R. R. Co. 63 N. Y. 522. See 

* State V. Nash, 7 Iowa, 347 ; Pennsylvania R. Co. v. Henderson, 

Hochreiter v. People, 1 Keyes, 66; 51 Pa. 315; West Chester & P. R. 

Davis V. State, 54 Tex. Crim. Rep. Co. v. McElwee, 67 Pa. 311; Mc- 

236. 114 S. W. 366. See Miller v. Kee v. Bidwell, 74 Pa. 218; Rus- 

State, 68 Miss. 221, 8 So. 273; Rea sell v. Miller, 26 Mich. 1. 

V. Missouri. 17 Wall. 532, 21 L. ed. i Weightnovel v. State, 46 Fla. 1, 

707; People v. Van Alstine, 57 35 So. 856. 



1414 EVIDENCE IN CRIMINAL CASES. [CHAP. XIV. 

the trial court cannot determine, as a question of law, that 
it amounted to an admission.'^ It is clear that no particular 
conduct or acquiescence can be classed as constituting a prop- 
er or improper admission, and hence it is practically impossible 
for a court to charge, as a matter of law, what conduct or 
acquiescence constitutes or does not constitute an admission. 
It is equally clear that the jury must pass upon the question, 
as a matter of fact, to determine its credibility, as in all other 
cases of circumstantial evidence.^ But, in connection there- 
with, the trial court should instruct the jury as to the legal 
functions or bearing of the evidence,* and that it is evidence 
of a dangerous character and must be received with great 
caution,^ and that the law does not favor confessions based 
upon admissions, and that such admissions alone are insuffi- 
cient to convict.^ Admissions by silence or conduct resolve 
themselves into a question of circumstantial evidence, admis- 
sible under the same rules, subject to the same limitations, 
and having only the same weight, as the infinite variety of 
circumstances that surround and change with each concrete 
case. 

"^McCusker v. Carlson, 20 N. Y. ^Plielan v. State, 114 Tenn. 483, 

Week. Dig. 424; Kelley v. People, 88 S. W. 1040; Avios v. State, 123 

55 N. Y. 565, 14 Am. Rep. 342; Ala. 50, 26 So. 524; Campbell v. 

State V. Perkins, 10 N. C (3 State, 55 A\a. SO; Williams v. State, 

Hawks,) 377; State v. Bowman, 80 42 Ark. 380; Ford v. State, 34 Ark. 

N. C. 432; People v. Dole, 122 Cal. 649; People v. Mallon, 103 Cal. 513, 

486, 68 Am. St. Rep. 50, 55 Pac. Z7 Pac. 512; Godwin v. State, — 

581. Del. — , 74 Atl. 1101; State v. 

3 Ackerson v. People, 124 111. Blackburn, — Del. — , 75 Atl. 536. 
56Z, 16 N. E. 847; People v. Mc- ^Graham v. State, 118 Ga. 807, 45 

Crea, 32 Cal. 98. S. E. 616; Jones v. State, 2 Ga. App. 

^Hanna v. State, 46 Tex. Grim. 433. 58 S. E. 559; State v. Glahn. 97 

Rep. 5, 79 S. W. 544; White v. Mo. 679, 11 S. W. 260. 
State, 153 Ind. 689, 54 N. E. 763. 
See Green v. State, 97 Tenn. SO, 36 
S. W. 700. 



§§ 684, 685] CONFESSIONS. 1415 

IX. What Admissions may Prove. 

§ 684. Admissions to prove contents of writings. — 

Whatever the accused says, or his acts, amounting to admis- 
sions, are evidence against himself, though such admissions 
may involve what must necessarily be contained in some writ- 
ing. The reason why such parol statements are admissible 
without a notice to produce or account for the absence of the 
written statement is that they are not open to the same ob- 
jection which belongs to parol evidence from other sources, 
where written evidence might have been produced; for such 
evidence is excluded from the presumption of its untruth, 
arising from the very nature of the case, where better evi- 
dence is withheld, whereas what the accused admits to be 
true may be reasonably presumed to be so.^ Such admissions 
are admissible as original evidence. The principle is the same 
whether the admission is by words or by acts; and a man 
may, by his acts, make an admission as clearly and as much in 
detail as he possibly could by words.^ "There does not, on 
principle, seem any reason why the admissions of a prisoner 
should not be receivable in evidence, as well when they relate 
to the contents of a written document as when they amount 
to direct confessions of guilt. The rule is generally laid down 
in the broadest terms : Optimum hahemus testem confifenton 
reuin. Everything which the prisoner says against himself 
is proper for the consideration of the jury, who are to ascribe 
such weight to it as it may seem to them to deserve." ^ 

§ 685. Confessions not excluded because accused is 
present. — It has been also held that the rule requiring the 

'^ S latter ie v. Pooley, 6 Mees. & ^l Russell, Crimes, 218, note. 

W. 669, 1 Harr. & W. 18, 10 L. J. See Reg v. Welch, 1 Den. C. C. 199. 
Exch. N. S. 8, 4 Jur. 1038. 

2 Reg. V. Basingstoke, 14 Q. B. 
611. 



1416 EVIDENCE IN CRIMINAL CASES. [CHAP. XIV. 

best evidence attainable will not preclude the putting in evi- 
dence the confessions of a party, made out of court, even 
though he be in court, open to examination, at the time they 
are offered.^ 

§ 686. Admission of marriage. — An admission, if there 
be independent proof of the corpus delicti,^ may prove mar- 
riage ; ^ and an admission of a party that he had been married 
according to the laws of a foreign country may render it 
unnecessary, if the confession is corroborated, to prove that 
the marriage had been celebrated according to the laws of that 
country.' 

§ 687. Admissions not evidence of record facts. — It is 

settled, however, that an admission, whether under oath on 
an examination, or otherwise, is not admissible to prove rec- 
ord facts. ^ It is at the same time competent to show by ad- 
missions the consequences of facts provable by record. Thus 
a witness can be asked whether he has not been in prison.^ 

X. How Confessions are to be Construed. 

§ 688. Entire confession must be proved. — The admis- 
sion, in a conversation or document, by the defendant, of a 
fact disadvantageous to himself, will not be received without 
receiving at the same time all such other parts of such con- 

1 Supra, §§ 360, 429, 433 ; Clark 3 j^^g^ ^ Newton, 2 Moody & R. 

V. Hougham, 2 Barn. & C. 149, 3 503; Reg. v. Shnmonsto, 1 Car. & 

Dowl. & R. 322, 1 L. J. K. B. 249; K. 164, 1 Cox, C. C. 30. But see 

Woolway v. Roive, 1 Ad. & El. 114; Reg. v. Flaherty, 2 Car. & K. 782; 

Brubaker v. Taylor, 76 Pa. 83; supra, § 172. 

Masonv. Poulson.AZUd.\62. i Supra, §§ 153, 179; Wharton, 

1 Supra, §§ 180-182 ; Wharton, Ev. §§ 63, 64, 541, 991. 
Ev. § 83. 2 Supra, § 474. 

2 See Com. v. Jackson, 11 Bush, 
679, 21 Am. Rep. 225, 1 Am. Crim. 
Rep. 74. 



§ 688] 



CONFESSIONS. 



1417 



versation or document, whether emanating from himself or 
from another, as may tend to explain or qualify the part 
first given.^ The whole relevant context is in such case to 
be left to the jury, who are to say whether the facts as- 
serted by the defendant in his favor are true.^ 

A confession will not be excluded by the fact that it is a 
part of a conversation, for the witness proving it may testify 
to what he heard, although not able to give the whole of it,^ 
or the part that he does not remember.* Only the relevant 
parts of the context are to be received.^ These rules are ap- 
plicable to written confessions as well.* 



1 Supra, § 622j, note, 11 and 12; 
supra, § 627; Rex v. Clewes, 4 Car. 
&. P. 221 ; Rex v. Jones, 2 Car. & 
P. 629 ; Rex v. Higgins, 3 Car. & P. 
603 ; Rouse v. Whitcd, 25 N. Y. 170, 
82 Am. Dec. Z2,7 ; Plainer v. Plai- 
ner, 78 N. Y. 90; Hanrahan v. 
People, 91 111. 142; McCulloch v. 
State, 48 Ind. 109, 1 Am. Crim. Rep. 
318; Chambers v. State, 26 Ala. 59; 
Frank v. State, 27 Ala. Z7 ; Haistcn 
V. Hixon, 3 Sneed, 691 ; State v. 
Phillips, 24 Mo. 476; State v. 
Branstetter, 65 Mo. 149; State v. 
Napier, 65 Mo. 462; Massey v. 
State, 1 Tex. App. 563. See Queen's 
Case, 2 Brod. & B. 294. 

2 Supra, § 622j, note 12; Whar- 
ton, Ev. §§ 1108, 1109; Smith v. 
Blandy, Ryan & M. 258; Rex v. 
Higgins, 3 Car. & P. 603; Rex v. 
Clewes, 4 Car. & P. 221 ; Respuh- 
lica V. M'Carty, 2 Dall. 86, 1 L. ed. 
300; Brown v. Com. 9 Leigh, 633, 
33 Am. Dec. 263; Blackburn v. 
State, 23 Ohio St. 146; Eiland v. 
State, 52 Ala. 322; Bower v. State, 
5 Mo. 364, 32 Am. Dec. 325 ; Green 
V. State, 13 Mo. 382; Young v. 
State, 2 Yerg. 292; Crazvford v. 



State, 4 Coldw. 190; State v. 
Worthing ton, 64 N. C. 594; Gris- 
wold V. State, 24 Wis. 144; Shriv- 
ers V. State, 7 Tex. App. 450 
Brown v. State, 8 Tex. App. 48 
State V. Underwood, 75 Mo. 230 

^Garrard v. State, 50 Miss. 147 
Wool folk V. State, 85 Ga. 69, 11 S 
E. 814; Eskridge v. State, 25 Ala 
30; State v. Gossett, 9 Rich. L. 428 
Coffman v. Com. 10 Bush, 495, 1 
Am. Crim. Rep. 293; Clough v. 
State, 7 Neb. 320; Fertig v. State, 
100 Wis. 301, 75 N. W. 960; State 
V. Millmeier, 102 Iowa, 692, 72 N. 
W. 275 ; Diehl v. State, 157 Ind. 549, 
62 N. E. 51. See Berry v. Com. 
10 Bush, 15, 1 Am. Crim. Rep. 272. 

^Kendall v. State, 65 Ala. 492; 
State V. Madison, 47 La. Ann. 30, 
16 So. 566. 

^Garrard v. State, 50 Miss. 147; 
State V. Sorter, 52 Kan. 531, 34 Pac. 
1036; Emery v. State, 92 Wis. 146, 
65 N. W. 848; Rounds v. State, 57 
Wis. 45, 14 N. W. 865; Waller v. 
People, 175 111. 221, 51 N. E. 900; 
Daniels v. State, 57 Fla. 1, 48 So. 
747. 

6 Wharton, Ev. § 1103. 



1418 



EVIDENCE IN CRIMINAL CASES. [CHAP. XIV. 



While a letter can be put in evidence without the original 
to which it is a reply, yet where a correspondence is offered 
it must be given complete."^ Where a letter is found on a 
party's person, addressed to him, it cannot be admitted in 
evidence against him without first showing" that he answered 
the letter, or invited the writing of it, or acquiesced in its 
contents.' 

The exact words of the confession need not be proved, but 
the substance of it must be stated.^ A mere vague impression 
of what the accused said is not sufficient.^" 

XI. How Admissibility of Confessions is to be Deter- 
mined. 

§ 689. The character of the confession is a question 
for the court. — It is the province of the court, and not of 
the jury, to determine whether a confession be made with 
that degree of freedom which is necessary to make it admis- 
sible evidence.^ And when there is a general objection that 



'Wharton, Ev. § 1103. 

8 Supra, § 862; Com. v. Eastman, 
1 Cush. 189, 48 Am. Dec. 596. 

^Kendall v. State, 65 Ala. 492; 
State V. Hopkirk, 84 Mo. 278; 
State V. Madison, 47 La. Ann. 30, 
16 So. 566; State v. Desroches, 48 
La. Ann. 428, 19 So. 250; Brister 
V. State, 26 Ala. 107; Feriig v. 
State, 100 Wis. 301, 75 N. W. 960; 
Green v. Com. 26 Ky. L. Rep. 1221, 
83 S. W. 638; Green v. State, 96 
Md. 384, 54 Atl. 104, 12 Am. Crim. 
Rep. 149; State v. Bcrberick, 38 
Mont. 423, 100 Pac. 209, 16 A. & 
E. Ann. Cas. 1077; State v. Lu 
Sing, 34 Mont. 31, 85 Pac. 521, 9 
A. & E. Ann. Cas. 344; People v. 
Giro, 197 N. Y. 152, 90 N. E. 432. 



^^ Berry v. Com. 10 Bush, 15. 1 
Am. Crim. Rep. 272. 

1 Supra, § 622i ; Reg. v. Gould, 9 
Car. & P. 364; State v. Squires, 48 
N. H. 364; Com. v. Harman, 4 Pa. 
269; Fife v. Com. 29 Pa. 429; 
Nicholson v. State, 38 Md. 140; 
Thompson v. Com. 20 Gratt. 724; 
Young v. Com. 8 Bush, 366; State 
V. Fidmcnt, 35 Iowa, 541 ; Hector 
V. State, 2 Mo. 166, 22 Am. Dec. 
454; Boyd v. State, 2 Humph. 39; 
State V. Vann, 84 N. C. 722; Simon 
V. State, 5 Fla. 285; Brister v. State. 
26 Ala. 107; Meinaka v. State, 55 
Ala. 47; Whaley v. State, 11 Ga. 
125; Clarke v. State, 35 Ga. 75; 
State V. Garvey, 28 La. Ann. 925, 26 
Am. Rep. 123; Carter v. State, 37 



§. 689] CONFESSIONS. 1419 

the confessions were made under threats, the court may in- 
quire what these threats were, so as to ascertain their suffi- 
ciency in law to exckide the confessions.^ The mode of con- 
ducting such examination is at the discretion of the court.^ 
And when, on the defendant objecting to an alleged confes- 
sion on the ground that it was induced by offers of favor made 
to him by the officer who arrested him and had him in cus- 
tody, the officer is called by the prosecution and denies that 
he made such offers of favor, and the defendant then offers 
evidence to prove that he did, it is the duty of the judge to 
hear such evidence before admitting the confessions.* 

If the confession is on its face voluntary, the burden is on 
the defendant to show it to be incompetent.^ If a confes- 
sion be received in evidence, it not appearing that any induce- 
ment had been held out, but at a later period of the trial it 
appears that such an inducement was held out before the mak- 
ing of the confession, as would render it inadmissible, the 
judge will order the jury to disregard it, or will strike the 
evidence of the confession out of his notes, and, if there be no 
other proof of guilt, direct an acquittal. ° But to justify this 
course the evidence should be such as would have excluded the 
confession if offered in time.' Ordinarily, the testimony of 
the defendant, to show improper influence, should be offered 

Tex. 362; Powell v. State, 44 Tex. Jur. 944, 3 Cox, C. C. 175; Nich- 

63; Runnels v. State, 28 Ark. 121; olson v. State, 38 Md. 140; State 

Wallace v. State, 28 Ark. 531 ; Gar- v. Platte, 34 La. Ann. 1061 ; Barnes 

rard V. State, 50 Miss. 147; supra, § v. State, 36 Tex. 356; supra, § 672. 

626. 5 Rufer v. State, 25 Ohio St. 464. 

^Whaley v. State, 11 Ga. 125; St& Nicholson v. State, ZS MA. UO. 

Washington v. State, 53 Ala. 29. ^ Berry v. State, 10 Ga. 511; 

3Com. V. Morrell, 99 Mass. 542. Earp v. State, 55 Ga. 136, 1 Am. 

* Com. V. Culver, 126 Mass. 464, Grim. Rep. 171 ; Cain v. State, 18 

3 Am. Grim. Rep. 81; Com. v. Ack- Tex. 387; Metzger v. State, 18 Fla. 

ert, 133 Mass. 402; Reg. v. Garner, 481. 

2 Car. & K. 920, 1 Den. C. C. 329, ^ Woodford v. People, 62 N. Y. 

3 New Sess. Gas. 329. Temple & M. 117, 20 Am. Rep. 464. 
7, 18 L. J. Mag. Gas. N. S. 1, 12 



1420 



EVIDENCE IN CRIMINAL CASES. [CHAP. XIV. 



and received before the confession is admitted.® But in cases 
of surprise the court will permit the statement of the alleged 
confession to be interrupted for the purpose of showing aliunde 
that it was improperly extorted.^ 

§ 689a. Confessions; voluntary character to be decided 

by the judge. — The admissibility of the confession being 
dependent upon its voluntary character, the question of wheth- 
er it is voluntary or not must be decided when the offer to 
introduce the confession testimony is made. The voluntary 
or involuntary character is a question of law, to be determined 
by the judge, from the facts, as a condition precedent to the 
admission of the confession testimony. This is the prevailing 
rule in the United States, and is in accordance with the ele- 
mentary principles defining the functions of judge and jury.* 



8 Com. V. Culver, 126 IMass. 464, 
3 Am. Crim. Rep. 81. 

3 Com. V. Harman, 4 Pa. 269 ; 
Serpentine v. State, 1 How. (Miss.) 
256; State v. Platte, 34 La. Ann. 
1061. 

^ United States — United States 
V. Stone, 8 Fed. 256; Hardy v. 
United States, 3 App. D. C. 35; 
United States v. Nardello, 4 Mack- 
ey, 503; Harrold v. Oklahoma, 94 
C. C. A. 415, 169 Fed. 47, 17 A. & 
E. Ann. Cas. 868. 

Alabama. — Bonner v. State, 55 
Ala. 246; Young v. State, 68 
Ala. 569; Redd v. State, 69 
Ala. 255; Johnson v. State, 59 
Ala. 27, 3 Am. Crim. Rep. 256; 
Goodivin v. State, 102 Ala. 87, 15 
So. 571 ; Jackson v. State, 83 Ala. 
76, 3 So. 847; Brozvn v. State, 124 
Ala. 76, 27 So. 250; McKinney v. 
State, 134 Ala. 134, 32 So. 726; 
Bush V. State, 136 Ala. 85, 33 So. 



878; Stone v. State, 105 Ala. 60, 17 
So. 114; Burton v. State, 107 Ala. 
108, 18 So. 285. 

Arkansas. — Corley v. State, 50 
Ark. 305, 7 S. W. 255; Smith v. 
State, 74 Ark. 397, 85 S. W. 1123. 

California. — People v. Kamaunu, 
110 Cal. 609, 42 Pac. 1090; People 
V. Ah How, 34 Cal. 218; People 
V. Jim Ti, 32 Cal. 60; People v. 
Siemsen, 153 Cal. 387, 95 Pac. 863 ; 
People V. Warren, 12 Cal. App. 
730, 108 Pac. 725 ; People v. Cahill, 
11 Cal. App. 685, 106 Pac. 115. 

Connecticut. — State v. Willis, 71 
Conn. 293, 41 Atl. 820. 

Florida. — Murray v. State, 25 
Fla. 528. 6 So. 498; Holland v. 
State, 39 Fla. 178, 22 So. 298; 
Gantling v. State, 41 Fla. 587, 26 
So. 72i7 ; Simon v. State, 5 Fla. 285 ; 
Metcger v. State, 18 Fla. 481; 
Thomas V. State, 58 Fla. 122, 51 
So. 410. 



§ 689a] 



CONFESSIONS. 



1421 



The sole question to be determined by the trial judge is, Is the 
confession voluntary or involuntary? If the testimony shows 



Georgia. — Boston v. State, 94 Ga. 
590, 20 S. E. 98, 21 S. E. 603; 
Daniels v. State, 78 Ga. 98, 6 Am. 
St. Rep. 238; Holsenbake v. State, 

45 Ga. 43. 

Illinois. — Zuckerman v. People, 
213 111. 114, 72 N. E. 741. 

Indiana. — Broivn v. State, 71 Ind. 
470; Honk v. State, 148 Ind. 238, 

46 N. E. 127, 47 N. E. 465 ; Thur- 
man v. State, 169 Ind. 240, 82 N. E. 
64. 

Iowa. — State v. Fidment, 35 Iowa, 
541; State v. Storms, 113 Iowa, 385, 
86 Am. St. Rep. 380, 85 N. W. 610; 
State V. Willing, 129 Iowa, 72, 105 
N. W. 355, semble. 

Kentucky. — Dugan v. Com. 102 
Ky. 241, 43 S. W. 418; Hudson v. 
Com. 2 Duv. 531 ; Hoivard v. Com. 
28 Ky. L. Rep. 727, 90 S. W. 578; 
Pearsall v. Com. 29 Ky. L. Rep. 222, 
92 S. W. 589. 

Louisiana. — State v. Woods, 124 
La. 738, 50 So. 671. 

Maine. — State v. Grover, 96 Me. 
363, 52 Atl. 757, 12 Am. Crim. Rep. 
128. 

Maryland. — Biscoe v. State, 67 
Md. 6, 8 Atl. 571. 

Massachusetts. — Com. v. Preece, 
HO Mass. 276, 5 N. E. 494, 5 Am. 
Crim. Rep. 107; Com. v. Bond, 170 
Mass. 41, 48 N. E. 756; Com. v. 
Culver, 126 Mass. 464, 3 Am. Crim. 
Rep. 81 ; Com. v. Antaya, 184 Mass. 
326, 68 N. E. 331, 12 Am. Crim. 
Rep. 135 ; Com. v. Hudson, 185 
Mass. 402, 70 N. E. 436; Com. v. 
Knapp, 10 Pick. 495, 20 Am. Dec. 
534. 



Michigan. — People v. Barker, 60 
Mich. 277, 1 Am. St. Rep. 501, 27 
N. W. 539. 

Minnesota. — State v. Staley, 14 
Minn. 105, Gil. 75 ; State v. H olden, 
42 Minn. 350, 44 N. W. 123. 

Mississippi. — Simmons v. State, 
61 Miss. 243 ; Williams v. State, 72 
Miss. 117, 16 So. 296. 

Missouri. — Hawkins v. State, 7 
Mo. 190; Hector v. State, 2 Mo. 
166, 22 Am. Dec. 454; State v. 
Rush, 95 Mo. 199, 8 S. W. 221; 
Couley V. State, 12 Mo. 462; State 
V. Patterson, 73 Mo. 695; State v. 
Hopkirk, 84 Mo. 278; State v. 
Duncan, 64 Mo. 265; State v. Mc- 
Kenzic, 144 Mo. 40, 45 S. W. 1117. 

Montana. — State v. Berbcrick, 38 
Mont. 423, 100 Pac. 209, 16 A. & E. 
Ann. Cas. 1077; State v. Sherman, 
35 Mont. 512, 119 Am. St. Rep. 869, 
90 Pac. 981; State v. Tighe, 27 
Mont. 327, 71 Pac. 3. 

New Hampshire. — State v. Squi- 
res, 48 N. H. 364. 

New York. — People v. Mackinder, 
80 Hun, 40, 61 N. Y. S. R. 523, 29 
N. Y. Supp. 842; People v. Meyer, 
162 N. Y. 357, 56 N. E. 758; Peo- 
ple V. Fox, 50 Hun, 604, 20 N. Y. 
S. R. 316, 3 N. Y. Supp. 359; Peo- 
ple V. Randaszio, 194 N. Y. 147, 87 
N. E. 112. 

Nevada. — State v. Williams, 31 
Nev. 360, 102 Pac. 974. 

New Jersey. — State v. Young, 67 
N. J. L. 223, 51 Atl. 939; State v. 
Guild, 10 N. J. L. 163, 18 Am. 
Dec. 404; Roesel v. State, 62 N. J. 
L. 216, 41 Atl. 408; State v. Mac- 



1422 



EVIDENCE IN CRIMINAL CASES. [CHAP. XIV. 



it to be involuntary, then it is excluded; if the testimony shows 
it to be voluntary, it is admissible. When the court rules 
that the confession is voluntary, and hence admissible, the 
same evidence, and all the circumstances that might in any 
way affect the credibility of the confession, must be introduced 
for the consideration of the jury, not that the jury can pass 
upon its competency, but in order that the jury may determine 
its weight and credibility.^ 

In deference to a line of respectable authorities, it should 
be here observed that where the confession testimony is con- 



Queen, 69 N. J. L. 522, 55 Atl. 
1006; State v. Hernia, 68 N. J. L. 
299, 53 Atl. 85; State v. Monich, 
74 N. J. L. 522, 64 Atl. 1016. 

North Carolina. — State v. Crozv- 
son, 98 N. C. 595, 4 S. E. 143 ; State 
V. Andrew, 61 N. C. (Phill. L.) 
205; State v. Vann, 82 N. C. 631; 
State V. Efler, 85 N. C. 585. 

Ohio. — Spears v. State, 2 Ohio 
St. 583; Lefevre v. State, SO Ohio 
St. 584, 35 N. E. 52 ; Rufer v. State, 
25 Ohio St. 469. 

Oklahoma. — Kirk v. Territory, 10 
Okla. 46, 60 Pac. 797. 

Oregon. — State v. Wintzingerodc, 
9 Or. 153; State v. Rogozuay, 45 Or. 
601, 78 Pac. 987, 81 Pac. 234, 2 
A. & E. Ann. Cas. 431; State v. 
Blodgctt, 50 Or. 329, 92 Pac. 820. 

Pennsylvania, — Com. v. Johnson, 
162 Pa. 63, 29 Atl. 280; Fife v. 
Com. 29 Pa. 429; Com. v. Johnson, 
217 Pa. 77, 66 Atl. 233. 

South Carolina. — State v. Bran- 
ham, 13 S. C. 389; State v. Vaig- 
neur, 5 Rich. L. 391 ; State v. 
Moorman, 27 S. C. 22, 2 S. E. 621 
State V. Workman, 15 S. C. 540 
State V. Kirby, 1 Strobh. L. 155 



State V. Middleton, 69 S. C. 72, 
48 S. E. 35; State v. Perry, 74 S. 
C. 551, 54 S. E. 764; State v. Gtis- 
sett, 9 Rich. L. 435. 

South Dakota. — State v. Allison, 
24 S. D. 622, 124 N. W. 747 ; State 
V. Landers, 21 S. D. 606, 114 N. W. 
717. 

Tennessee. — Self v. State, 6 Baxt. 
244; Boyd v. State, 2 Humph. 39; 
Beggarly v. State, 8 Baxt. 520; 
Maples V. State, 3 Heisk. 408. 

Texas. — Thomas v. State, 35 
Te.x. Crim. Rep. 178, 32 S. W. 771 ; 
Cain V. State, 18 Tex. 387. 

Vermont. — State v. Gorham, 67 
Vt. 365, 31 Atl. 845, 10 Am. Crim. 
Rep. 25 ; State v. Can; 53 Vt. 37. 

Virginia. — Thompson v. Com. 20 
Gratt. 724; Smith v. Com. 10 Gratt. 
737. 

Washington. — State v. Washing. 
36 Wash. 485, 78 Pac. 1019. 

Wisconsin. — Hints v. State, 125 
Wis. 405, 104 N. W. 110. 

Wyoming. — Clay v. State, 15 
Wyo. 42, 86 Pac. 17, 544. 

^Kirk V. Territory, 10 Okla. 46, 
60 Pac. 797; Redd v. State, 69 Ala. 
260; Young v. State, 68 Ala. 578. 



§ 689a] CONFESSIONS. 1423 

flicting, that is, the testimony adduced as showing the circum- 
stances under which the confession itself was obtained, the 
question of the character of the confession may be left to 
the jury. Such holdings, however, are in direct conflict with 
the elementary principle that questions of law are to be de- 
termined by the judge, and questions of fact to be determined 
by the jury. The confusion has, in many cases, arisen out of 
a misunderstanding as to the meaning of the word "confes- 
sion." The confession is the direct acknowledgment of guilt, 
and whether or not it is a confession is a question of law for 
the court. Statements or admissions contain facts from which 
guilt may be inferred, and the credibility of these facts is to be 
determined by the jury. These functions should always be 
kept distinct, and never be taken to mean that, after the judge 
has passed upon the admissibility of a confession, the jury then 
may also pass upon its competency and reject it. However 
wrong these rulings may be, they are quite numerous, as shown 
by the following cases.^ 

3 United States.— Wilson v. Unit- cott, 130 Iowa, 1, 104 N. W. 341; 

ed Stales, 162 U. S. 613, 40 L. ed. State v. Foster, 136 Iowa, 527, 114 

1090, 16 Sup. Ct. Rep. 895; Shaffer N. W. 36; State v. Moran, 131 

V. United States, 24 App. D. C. 417, Iowa, 645, 109 N. W. 187. 

196 U. S. 639, 49 L. ed. 631, 25 Sup. Massachusetts.— Com. v. Preece, 

Ct. Rep. 795. 140 Mass. 276, 5 N. E. 494, 5 Am. 

Georgia. — Willis v. State, 93 Ga. Crim. Rep. 107 ; Com. v. Piper, 120 

208, 19 S. E. 43; Thomas v. State, Mass. 185; Com. v. Bond, 170 Mass. 

84 Ga. 613, 10 S. E. 1016; Irby v. 41, 48 N. E. 756; Com. v. Smith, 

State, 95 Ga. 467, 20 S. E. 218; 119 Mass. 305; Com. v. Hudson, 

Dailcy v. State, 80 Ga. 359, 9 S. E. 185 Mass. 402, 70 N. E. 436; Com. 

1072; Carr v. State, 84 Ga. 250, 10 v. Burroughs, 162- Mass. 513, 39 N. 

S. E. 626; Price v. State, 114 Ga. E. 184; Com. v. Antaya, 184 Mass. 

855, 40 S. E. 1015, 12 Am. Crim. 326, 68 N. E. 331, 12 Am. Crim. 

Rep. 203 ; Griner v. State, 121 Ga. Rep. 135 ; Com. v. Tucker, 189 

614, 49 S. E. 700. Mass. 457, 7 L.R.A.(N.S.) 1056, 76 

Iowa. — State V. Storms, 113 Iowa, N. E. 127. 

385, 86 Am. St. Rep. 380, 85 N. Michigan.— F^o/'/^ v. Flynn, 96 

W. 610; State v. Bennett, 143 Iowa, Mich. 276, 55 N. W. 834; People v. 

214, 121 N. W. 1021 ; State v. W-est- Howes, 81 Mich. 396, 45 N. W. 



1424 EVIDENCE IN CRIMINAL CASES. [CHAP. XIV. 

XIA. Weight of Confessions. 



§ 689b. Weight and conclusiveness. — The general rule 
is that confessions are not conclusive upon the accused, but 
can be disproved by other evidence ; ^ but the state introducing 



961; People v. Robinson, 86 Mich. 
415, 49 N. W. 260; People v. Swet- 
land, 77 Mich. 53, 43 N. W. 779, 
8 Am. Crim. Rep. 283; People v. 
MaxHeld, 146 Mich. 103, 108 N. W. 
1087. 

Mississippi. — Garrard V. State, 
50 Miss. 147 (reversed). Ellis v. 
State, 65 Miss. 44, 7 Am. St. Rep. 
634, 3 So. 188 (overruled; Williams 
V. State, 72 Miss. 117, 16 So. 296 
(overruled.) 

Missouri. — State v. Stebbins, 188 
Mo. 387, 87 S. V^. 460; State v. 
Jones, 171 Mo. 401, 94 Am. St. 
Rep. 786, 71 S. W. 680. 

Montana. — State v. Tighe, 27 
Mont. 327, 71 Pac. 3. 

Nebraska. — Heddendorf v. State, 
85 Neb. 747, 124 N. W. 150. 

New Jersey. — Bullock v. State, 
65 N. J. L. 557, 86 Am. St. Rep. 
668, 47 Atl. 62. 

New York. — People v. Cassidy, 
133 N. Y. 612, 30 N. E. 1003 ; Peo- 
ple V. Meyer, 162 N. Y. 357, 56 N. 
E. 758; People v. Randazzio, 194 
N. Y. 147, 87 N. E. 112; People v. 
Brasch, 193 N. Y. 46, 85 N. E. 809 ; 
People V. Zigouras, 163 N. Y. 250, 
57 N. E. 465 ; People v. White, 176 
N. Y. 331, 68 N. E. 630. 

Ohio. — Burdge v. State, 53 Ohio 
St. 512, 42 N. E. 594. 

Pennsylvania. — Volkavitch v. 
Com. 9 Sadler (Pa.) 327, 12 Atl. 
84; Com. v. Epps, 193 Pa. 512, 44 



Atl. 570, 12 Am. Crim. Rep. 185; 
Com. V. Van Horn, 188 Pa. 143. 
41 Atl. 469; Com. v. Shaffer, 178 
Pa. 409, 35 Atl. 924 ; Com. v. Aston, 
227 Pa. 112, 75 Atl. 1019. 

South Carolina. — State v. Kirby, 
1 Strobh. L. 378. 

South Dakota. — State v. Vincent, 
16 S. D. 62, 91 N. V^. 347. 

Texas. — Cortez v. State, 43 Te.x. 
Crim. Rep. 375, 66 S. V^. 453; 
Morris v. State, 39 Tex. Crim. Rep. 
371, 46 S. W. 253; Johnson v. State, 
49 Tex. Crim. Rep. 314, 94 S. W. 
224; Hatnlin v. State, 39 Tex. 
Crim. Rep. 579. 47 S. W. 656. 

Vermont. — State v. Jenkins, 2 
Tyler (Vt.) 377. 

Washington. — State v. Washing, 

36 W^ash. 485, 78 Pac. 1019. 
Wisconsin. — Hintz v. State, 125 

Wis. 405, 104 N. W. 110. 

Wyoming. — Clay v. State, 15 
Wyo. 42, 86 Pac. 17, 544. 

1 People V. Rulloff, 3 Park. Crim. 
Rep. 401 ; Com. v. Howe, 9 Gray, 
110; State v. Blodgett, 50 Or. 329, 
92 Pac. 820; Lester v. State, 32 Ark. 
727; Simmons v. State, 61 Miss. 
243 ; People v. Fox, 50 Hun, 604, 20 
N. Y. S. R. 316, 3 N. Y. Supp. 
359; Markey v. State, 47 Fla, 38, 

37 So. 53; Murmutt v. State, — 
Te.x. Crim. Rep. — , 67 S. W. 508; 
Sozuers v. State, 55 Tex. Crim. 
Rep. 113, 113 S. W. 148; Jaynes v. 
People, 44 Colo. 535, 99 Pac. 325, 



§ 690] 



CONFESSIONS. 



1425 



the confession is bound by it to the same extent as it is bound 
by other evidence introduced by it.^ 

Where the confession is admitted, the jury must consider 
it in the light of all the surrounding circumstances, and in con- 
nection with all the other evidence in the case, and they are 
not bound to accept it in its entirety, but may reject such part 
as they believe to be untrue.^ But the weight of the confession 
is always to be determined by the jury.* 

XII. Self-Serving Declarations. 

§ 690. Self-serving declarations inadmissible. — Declara- 
tions made by a defendant in his own favor unless part of 
the res gestcu, or of a confession offered by the prosecution. 



16 A. & E. Ann. Cas. 787; People 
V. Roivland, 12 Cal. App. 6, 106 Pac. 
428. 

^People V. Hare, 57 Mich. 505, 
24 N. W. 843; State v. Dashman, 
153 Mo. 454, 55 S. W. 69, 14 Am. 
Crim. Rep. 171. 

See Montgomery v. State, 128 
Wis. 183, 107 N. W. 14; Pratt v. 
State, 59 Tex. Crim. Rep. 635, 129 
.S. W. 364 ; Banks v. State, 56 Te.x. 
Crim. Rep. 262, 119 S. W. 847. 

3 United States v. Smith, Fed. 
Cas. No. 16,342a; United States v. 
Prior, 5 Cranch, C. C. 27, Fed. Cas. 
No. 16,092; Parke v. State, 48 Ala. 
266; State v. West, Houst. Crim. 
Rep. 371; Licett v. State, 23 Ga. 
57; Hudgins v. State, 26 Ga. 350; 
State V. Wedemeyer, 11 La. Ann. 
49; Coon v. State, 13 Smedes & ^I. 
246; McCann v. State. 13 Smedes 
& M. 471 ; Furst v. State, 31 Neb. 
403, 47 N. W. 1116; Young v. State. 
2 Yerg. 292; McHenry v. State, 40 
Crim. Ev. Vol. II.— 90. 



Tex. 46 ; Riley v. State, 4 Tex. App. 
538; Cook v. State, 114 Ga. 523, 40 
S. E. 703, 12 Am. Crim. Rep. 115; 
Nicks V. State, 40 Tex. Crim. Rep. 
1, 48 S. W. 186; United States v. 
Williams, 103 Fed. 938; Brewer v. 
State, 72 Ark. 145, 78 S. W. 773; 
State V. Brinte. 4 Penn. (Del.) 551, 
58 Atl. 258; State v. Powell, 5 Penn. 
(Del.) 24, 61 Atl. 966; State v. 
Tilghman, 6 Penn. (Del.) 54, 63 
Atl. 772; Gantling v. State, 40 Fla. 
237, 23 So. 857 ; Kirby v. State, 44 
Fla. 81, 32 So. 836; Hank v. State, 
148 Ind. 238, 46 N. E. 127, 47 N. E. 
465. 

'^ State V. Welch, 7 Port. (Ala.) 
463; United States v. Stone (C. 
C.) 8 Fed. 232; Stallings v. State, 
47 Ga. 572; State v. Staley, 14 
Minn. 105, Gil. 75 ; State v. Patter- 
son, 68 N. C. 292 ; McCabe v. Cnr*i. 
3 Sadler (Pa.) 426. 8 Atl. 45; Bres 
V. State. 39 Tex. 95; State v. 
Jenkins, 2 Tyler, Z77. 



1426 



EVIDENCE IX CRIMINAL CASES. [CHAP. XIV. 



are not admissible for the defense.^ Nullus idoncus testis in 
re sua intelligitur.^ Hence comes the maxim, Scriptura pro 
scrihente nihil prohat.^ Nor is the result changed by the stat- 
utes enabling a party to be called as a witness in his own be- 
half. That which he could prove by his sw^orn statements 
he is not permitted to prove by statements which are unsworn. 
In any view, therefore, the extrajudicial self-serving declara- 
tions of a party are inadmissible for him, with the exceptions 
hereafter stated, as evidence to prove his case.* 

§ 691. Declarations as res gestae. — When such declara- 
tions are part of the res gestce they are admissible.^ It is not, 
however, necessary that such declarations, to be part of the 
res gestce, should be precisely concurrent with the act under 
trial; it is enough if they spring from it, and are made under 
circumstances which preclude the idea of design.^ The test 



1 Supra, §§ 678a. 678b; State v. 
Scott, 8 N. C. (1 Hawks) 24; 
State V. Reit::, 83 N. C. 634; Bland 
V. State, 2 Ind. 608; State v. Miller, 
53 Iowa, 84, 4 N. W. 838 ; State v. 
Jackson, 17 Mo. 544, 59 Am. Dec. 
281 ; State v. Van Zant, 71 Mo. 541 ; 
Tipper v. Com. 1 Met. (Ky.) 6; 
State V. Wisdom, 8 Port. (Ala.) 
511; Campbell v. State, 23 Ala. 44; 
Corbett v. State, 31 Ala. 329; Hall 
V. State, 40 Ala. 698; Birdsong v. 
State, 47 Ala. 68; Atwell v. State, 
63 Ala. 61; Newcomb v. State, 37 
Miss. 383; People v. Wyman, 15 
Cal. 70; Riggs v. State, 6 Coldw. 
517; State v. Diifour, 31 La. Ann. 
804; Golden v. State, 19 Ark. 590; 
Butler V. State, 34 Ark. 480; 
IValker v. State, 13 Tex. App. 618. 

See §§ 262 et seq. ; Soger v. State, 
11 Tex. App. 110. 

2 L. 10 D. xxii. 5. 



3 See Wharton, Ev. §§ 170. 265, 
1101. 

^ State V. Anderson, 10 Or. 448; 
Com. V. Sturtivant, 117 Mass. 122. 
19 Am. Rep. 401 ; Ray v. State, 50 
Ala. 104; Hall v. State, 48 Ga. 607; 
State V. Brown, 64 Mo. 367. 

^ Supra. § 679, note; Com. v. 
Rowc, 105 Mass. 590 ; Reg. v. Crozv- 
hurst, 1 Car. & K. 370; Reg. v. 
Smith, 2 Car. & K. 207; Little v. 
Com. 25 Gratt. 921; State v. Ab- 
bott, 8 W. Va. 741 ; Manier v. State, 
6 Baxt. 595 ; O'Shields v. State, 55 
Ga. 696; Roberts v. State, 68 Ala. 
515; Head v. State, 44 Miss. 72,]; 
Payne v. State. 57 Miss. 348; Col- 
quitt V. State, 34 Tex. 550; Talia- 
ferro V. State, 40 Tex. 523; Mad- 
dox V. State, 41 Tex. 205 ; State v. 
Garrand, 5 Or. 216; supra, §§ 262, 
264. 

^ State V. Vincent, 24 Iowa, 570, 



i 



§ 691] CONFESSIONS. 1427 

is, Were the declarations the facts talking through the party, 
or the party's talk about the facts ? Instinctiveness is a requi- 
site, and when this obtains, the declarations are admissible.^ 
Hence, a defendant's explanations, immediately upon stolen 
goods being found in his possession, are admissible,* and so 
are the defendant's utterances, when his right was first called 
in question,* as well as those made at the commission of the 
offense charged.^ But when the declarations are distinguish- 
able in point of time, or are open to the suspicion of being 
part of the defendant's plan of defense, they must be ruled 
outJ Thus, on an indictment against a prisoner for having 
in his possession coining tools, with intent to use them, he 
cannot give in evidence his declarations, as to the purpose for 
which he wished them made.® Where, also, a defendant, in 
conversation with a witness, admitted the existence of a par- 
ticular fact which tended strongly to establish his guilt, but 
coupled it with an explanation which, if true, would exculpate 
him, it was held that the accused could not show that he had 
at other times made the same statement and explanation to 
others.^ So, one indicted for murder cannot give in evidence 
his own conversations, had after going half a mile from the 
place of murder, when he has had time to collect himself to 
make out his case.^° And so, where a defendant, indicted for 

95 Am. Dec. 753; People v. Vernon, 248; Henderson v. State, 70 Ala. 23, 

35 Cal. 49, 95 Am. Dec. 49; State 45 Am. Rep. 72; Payne v. State, 57 

V. Patterson, 63 N. C. 520; Neyland Miss. 348; McPhail v. State, 9 Tex, 

V. State, 13 Tex. App. 536. See App. 164; supra, §§ 263, 272. 

supra, § 264. ^Hampton v. State, 5 Tex. App. 

3 See supra, §§ 262, 263. 463. 

4 Supra, § 263 ; post, § 761 ; Reg. ^ Supra, §§ 262, 263. 

V. Smith, 2 Car. & K. 207; Com. v. "^ State v. Brown, 64 Mo. 367. 

Millard, 1 Mass. 6 ; State v. Jone.'i, See supra, § 263. See, however, 

20 N. C. 120 (3 Dev. & B. L. 122) ; Anderson v. State, 11 Tex. App. 

State V. Daley, 53 Vt. 442, 38 Am. 576. 

Rep. 694. See People v. Bowling, ^ Com. v. Kent, 6 Met. 221. 

84 N. Y. 478; Bennett v. People, 96 ^ Earhart v. Com. 9 Leigh, 671. 

111. 602; Lander v. People, 104 III. ^<^ Gardner v. People, 4 111. 83. 



1428 EVIDENCE IX CRIMIXAL CASES. [CHAP. XIV. 

imircler, was met after the transaction, at some distance from 
the scene, with blood on his hands, it was held that his declara- 
tions at the time to account for the blood on his hands, and 
other suspicious circumstances, were not admissible ; ^^ and 
this, though there was no person present when the homicide 
was committed. ^^ 

§ 692. Accused may show capacity in which he was 
acting. — A party may in certain cases show by his own 
contemporaneous statements, that he was acting at the particu- 
lar moment, not illegally, but under the direction of the law. 
Thus it is ruled that an officer indicted as an accessory to a 
burglary may, for the purpose of explaining his frequent inter- 
course with those indicted as principals, and to prove his own 
diligence and fidelity in pursuing them, give in evidence the 
conversations between himself and another officer as to the 
best means of gaining their confidence and thereby bringing 
them to justice, and also the information received by him in 
answer to inquiries made of persons whom he met while in 
pursuit of the burglars.'' 

§ 693. Accused's declarations as to his condition. — 

Another exception to the rule that self-serving declarations 
are inadmissible is to be found in the reception, under the lim- 
itations already noticed, of a party's declarations as to his 
physical or mental condition, when such are in controversy.* 

§ 694. Weight of self-serving declarations. — When a 
defendant's statements in his own behalf are admissible, their 

^^Scaggs v. State, 8 Smedes & M. ^^ Bland v. State, 2 Ind. 608. 

722. See Bennett v. People, 96 111. ^ Com. v. Robinson. 1 Gray, 555. 

602; Pharr v. State. 9 Tex. App. See supra, § 274. 

129. 10 Tex. App. 485 ; Childress v. ^ Supra, § 271-274. 
State. 10 Tex. App. 698. 



i§ 695, 696] 



CONFESSIONS. 



1429 



weight is for the jury/ and they can be disproved by the 



prosecution. 



XIII. Admissions of Agents. 



§ 695. When admissions of agent bind principal. — 

When the relation of principal and agent in a particular trans- 
action is estabhshed, the agent's admissions may be imputed 
to the principal, if his agency involves the making of such 
admissions.^ Hence the declarations of a messenger sent to 
a third party by the prisoner, if made with reference to the 
object of the mission, are admissible in evidence against him, 
where the evidence shows they were made by his authority.^ 
But it should be remembered that, before the admissions of 
the agent can be proved, the fact of agency should first be 
established by other evidence.^ And it has been questioned 
whether the admissions of an agent, not a co-conspirator, un- 
less part of the res gestcr, can be put in evidence if the agent 
himself could be called to substantiate the facts admitted.* 

§ 696. Admissions of agent in cases of criminal negli- 
gence. — It has been argued that, to impute the agent's 



I 



^ Tipton V. State, Peck (Tenn/; 
308; Conner v. State, 34 Tex. 659. 

2 Rex V. Jones, 2 Car. & P. 629. 

1 Wharton, Ev. § 1170; Reg. v. 
Dozvner, 14 Cox, C. C. 486, 43 L. 
T. N. S. 445, 45 J. P. 52; Cliquot's 
Champagne, 3 Wall. 114, 18 L. ed. 
116; Com. v. Boo-tt, Thacher, Crim. 
Cas. 390; State v. Taylor. 3 Brev. 
243. 

^Browning v. State, 33 Miss. 4S; 
Gerke v. California Steam Nav. Co. 
9 Cal. 251, 70 Am. Dec. 650; Prire 
V. Thornton, 10 Mo. 135 ; Toledo & 
W. R. Co. V. Goddard, 25 Ind. 185; 
Northwestern Unio)i Packet Co. v. 



Clough, 20 Wall. 528, 22 L. ed. 406; 
Buriiside v. Grand Trunk R. Co. 47 
N. H. 554, 93 Am. Dec. 474. 

3 Wharton, Ev. § 1183; United 
States V. Morroiv, 4 Wash. C. C. 
7Z2>, Fed. Cas. No. 15,819; Lambert 
V. People, 76 N. Y. 220, 32 Am. 
Rep. 293; Russell v. State, 71 Ala. 
348. 

^Melville's Trial, 29 How. St. 
Tr. 746; Roscoe, Crim. Ev. 8th ed:' 
52. See Reg. v. Cooper, L. R. 1 Q. 
B. Div. 19, 45 L. J. Mag. Cas. N. S. 
15, Z2, L. T. N. S. 754, 24 Week. 
Rep. 279, 13 Cox, C. C. 123, quoted 
supra, § 682. 



1430 EVIDENCE IN CRIMINAL CASES. [CHAP. XIV. 

act to the principal, a criminal design must be brought home 
to the principal.^ But proof that a guilty intent existed on 
the part of the principal cannot be necessary in cases where 
the principal {e. g., a corporation) is indicted for negligence, 
and the acts or declarations of the negligent agent are offered 
to prove the negligence.* 

§ 697. Admissions of attorneys of record. — As a mat- 
ter of practice, subject to exceptions in those cases in which 
a defendant is required to plead or otherwise answer in person, 
an attorney, by admissions made during the trial of a case, 
or in correspondence relating to such trial, may bind his client, 
in criminal as well as civil issues; and such admissions, part 
of a mutual plan for the trial of the case, are irrevocable by 
the client, except in cases of fraud or of a gross mistake.^ 

The admissions of a referee are to be in like manner limit- 
ed. Thus, when the president of an insurance company refers 
an inquirer as to insurance to a third person, who he said 
was chief man, for information, this does not make admis- 
sible against the president, on an indictment against him, state- 
ments made in his absence by the bookkeeper as to the assets 
of the company.^ 

XIV. Admissions of Co-Conspirators. 

§ 698. When admissible against others than the con- 
fessor. — The general rule is that admissions are only ad- 
missible against the party who makes them.^ But where 

ISee Cooper v. Slade. 6 H. L. « Wharton, Ev. § 1174. 

Cas. 746. 27 L. J. Q. B. N. S. 449, i Wharton, Ev. § 1184. 

4 Jur, N. S. 791, 6 Week. Rep. 461 ; ^Lambert v. People, 6 Abb. N. C. 

Taylor. Ev. § 827; Melville's Trial. 181. S. C. 76 N. Y. 220, 32 Am. 

29 How. St. Tr. 764; Queen's Case. Rep. 293. 

2 Brod. & B. 306, 307^ 22 Revised ^ Levis on v. State. 54 Ala. 520; 

Rep. 662, 11 Eng. Rul. Cas. 183: People \. Gonzales, \Z6 Ca\. (^. 69 

/?(?;ir V. Ch/c/j, Moody & M. 433, 437. Pac. 487, 12 Am. Crim. Rep. 97; 



§ 698] 



CONFESSIONS. 



1431 



several persons are proved to have combined for the same 
unlawful purpose, any act done by one of the party, in pur- 
suance of the concerted plan, with reference to the crime 
charged, is the act of all, and proof of such act is evidence 
against any and all of the others who were engaged in the 
same conspiracy.^ When once the conspiracy or combination 
is established, the act or declaration of one conspirator or ac- 
complice in the prosecution of the enterprise is considered the 
act or declaration of all, and therefore imputable to all. All 
are deemed to assent to or command what is said or done by 
anyone in furtherance of the common object.^ But the com- 
petency of the evidence of such admissions is determined by 
the fact that a conspiracy or combination existed. Hence a 
foundation must first be laid by other evidence,* by proof suf- 



Daniels v. State, 78 Ga. 98, 6 Am. 
St. Rep. 238 ; Hudson v. Com. 2 
Duv. 531; State v. Johnson, 47 La. 
Ann. 1225, 17 So. 789; Com. v. 
Hunton, 168 Mass. 130, 46 N. E. 
404; Lynes v. State, 36 Miss. 617; 
People V. Kief, 58 Hun, 337, 11 N. 
Y. Supp. 926. 12 N. Y. Supp. 896; 
Morrison v. State, 5 Ohio, 438 ; 
State V. Carson, 36 S. C. 524, 15 S. 
E. 588; Sessions v. State, 37 Tex. 
Crim. Rep. 62, 38 S. W. 623; State 
V. Flowers, 58 Kan. 702, 50 Pac. 
938. 

^ Mores v. Martens, 8 Abb. Pr. 
257; Scott v. Baker, 37 Pa. 330: 
Lacey v. Porter, 103 Cal. 597, 37 
Pac. 635 ; Colt v. Eves, 12 Conn. 
243. 

For admissibility of declarations 
of co-conspirators as res gestce, see 
note in 19 L.R.A. 745. 

^Re Clark, 9 Blatchf. 379, Fed. 
*"as. No. 2,802; American Fur Co. 
V. United States, 2 Pet. 358, 7 L. 
cd. 450; Niidd v. Burrozvs, 91 U. S. 



427, 23 L. ed. 286; Lincoln v. Claflin, 
7 Wall. 132, 19 L. ed. 106; Rea v. 
Missouri, 17 Wall. 532, 21 L. ed. 
707; Jones v. Simpson, 116 U. S. 
609, 29 L. ed. 742, 6 Sup. Ct. Rep. 
538 ; Drake v. Stewart, 22 C. C. A. 
104, 40 U. S. App. 173, 76 Fed. 140; 
Stewart v. State, 26 Ala. 44; Smitli 
V. State, 52 Ala. 407; People v. Col- 
lins, 64 Cal. 293, 30 Pac. 847; Mc- 
Rae V. State, 71 Ga. 96, 5 Am. Crim. 
Rep. 622; Williams v. State, 47 Ind. 
568; Com. v. Brozvn, 14 Gray, 419; 
People V. Pitcher, 15 Mich. 397; 
Mask V. State, 32 Miss. 405; Sfa'.c 
V. Daubert, 42 Mo. 242; State v. 
Ross, 29 Mo. 32; State v. Pike, 51 
N. H. 105; State v. George, 29 N. 
C. (7 Ired. L.) 321 ; Com. v. Eberlc, 
3 Serg. & R. 9; Strady v. State, 5 
Coldw. 300; Phillips v. State, 61 tyi. 
App. 364; State v. Thiheau. 30 Vt. 
100; Ellis V. Dempsey, 4 W. Va. 
126. 

* Com. V. Crowninshield, 10 Pick. 
497; Com. v. Ingraham, 7 Gray, 46, 



1432 



EVIDENCE IN CRIMINAL CASES. [CHAP. XIV. 



ficient in the opinion of the court to establish prima facie the 
fact of conspiracy between the parties. Where the evidence 
is sufficient in the opinion of the court to establish the prima 
facie case, and it is admitted, it is for the jury to say upon 
all the evidence, under the instructions of the court, whether 
or not the conspiracy existed.* 

The evidence supporting a conspiracy is generally circum- 
stantial; it is not necessary to prove any direct act, or even 
any meeting of the conspirators, as the fact of conspiracy must 
be collected from the collateral circumstances of each case.® It 
is for the court to say whether or not such connection has 
been sufficiently shown, but when that is done the doctrine 
applies that each party is an agent for all the others, so that 
an act done by one, in furthering the unlawful design, is the 



Clazvson v. State, 14 Ohio St. 234; 
State V. Cain, 20 W. Va. 679; State 
V. Daubert. 42 Mo. 242 ; Broivning 
V. State, 30 Miss. 656; Jones v. 
Com. 2 Duv. 554; Bowling v. Com. 
79 Ky. 604; Hightower v. State. 22 
Tex. 605 ; Myers v. State, 6 Tex. 
App. 1 ; Avery v. State, 10 Tex. 
App. 199; Casey v. State. 37 Ark. 
67. 

5 1 East, P. C. chap. 2, § 37, p. 96 ; 
1 Phillipps, Ev. 447, citing Queen's 
Case, 2 Bred. & B. 302, 22 Revised 
Rep. 662, 11 Eng. Rul. Cas. 183; 2 
Russell, Crimes, 697; United States 
V Uartivell, 3 Cliff. 221, Fed. Cas. 
No. 15,318; United Statesv. McKe^, 
3 Dill. 546, Fed. Cas. No. 15,685; 
United States v. Cole, 5 McLean, 
513, Fed. Cas. No. 14,832; Ameri- 
can Fur Co. V. United States, 2 Pet. 
365, 7 L. ed. 453; Com. v. Brozvn, 
14 Gray, 419; Ormsby v. People. 53 
N. Y. 472; Danville Bank v. IVad- 
dill, 31 Gratt. 469; State v. Nash, 



7 Iowa, 347 ; Hamilton v. People. 
29 Mich. 195; State v. George, 29 
N. C. (7 Ired. L.) 321; Garrard v. 
State. 50 Miss. 147; State v. Ross, 
29 Mo. 32; Matthews v. State, '> 
Tex. App. 23. See Evans v. People, 
90 111. 384; Wharton, Crim. Law. 
8th ed. § 211a; Reg. v. Coney, L. R. 

8 Q. B. Div. 534, 51 L. J. Mag. Cas. 
N. S. 66, 46 L. T. N. S. 307, 30 
Week. Rep. 678, 15 Cox, C. C. 46, 
46 J. P. 404. But see Rex v. Har- 
grove, 5 Car. & P. 170, cited supr.i. 
§ 440; Com. v. Crowninshicld, 10 
Pick. 497; Com. v. Waterman. 122 
Mass. 43 ; Com. v. Scott, 123 Masr. 
222, 25 Am. Rep. 81; Com. v. Rat- 
cliff <-, 130 Mass. 36; 3 Starkie, Ev. 
235. See Wharton, Crim. Law, 8th 
ed. § 1404. 

^Rex V. Parsons. 1 W. Bl. 392; 
Reg. V. Murphy, 8 Car. & P. 297 ; 
Reg. V. Brittain, 3 Cox, C. C. 76; 
Reg. V. Parnell. 14 Cox, C. C 505; 
Reg. V. Diifficld, 5 Cox, C. C. 404. 



§ 698] 



CONFESSIONS. 



1433 



act of all, and a declaration made by one, at the time, is evi- 
dence against allJ Thus, where two persons are proved to 
have obtained goods by false pretenses, evidence that one of 
tiiem, in pursuit of the common aim, made the false pretenses 
charged, warrants the conviction of both.' So, if there is con- 



'1 East, P. C 96; 1 PhilHpps, 
Ev. 477 ; Rex v. Stone, 6 T. R. 527, 
3 Revised Rep. 253 ; Reg. v. Kerri- 
gan, 9 Cox, C. C. 441, Leigh & C. 
C. C. 383, 33 L. J. Mag. Cas. N. S. 
71, 9 L. T. N. S. 843, 12 Week. 
Rep. 416; Nudd v. Burrows, 91 U. 
S. 426, 23 L. ed. 286 ; United States 
V. Hinman, 1 Baldw. 292, Fed. Cas. 
No. 15,370; United States v. Good- 
ing, 12 Wheat. 467, 6 L. ed. 695; 
United States v. Graff, 14 Blatchf. 
381, Fed. Cas. No. 15,244; Lee v. 
Lamprey, 43 N. H. 13; Com. v. 
Crowninshield, 10 Pick. 497; Com. 
V. Watertnan, 122 Mass. 43; Stal'j 
V. Grady, 34 Conn. 118; State v. 
Soper, 16 Me. 293, 33 Am. Dec. 
665 ; Apthorpe v. Comstock, 2 Paige. 
482; Ormsby v. People, 53 N. Y. 
472; Burns v. McCabe, 72 Pa. 309, 
7 Mor. Min. Rep. 1 ; Clazvson v. 
State, 14 Ohio St. 234; People v. 
Pitcher, 15 Mich. 397; Williams v. 
Slate. 54 111. 423; Chicago, R. L & 
P. R. Co. V. Collins, 56 111. 212; 
Philpot V. Taylor, 75 III. 309; Jones 
V. State, 64 Ind. 473; Martin v. 
Com. 2 Leigh, 745 ; State v. George, 
30 N. C. (8 Ired. L.) 324, 49 Am. 
Dec. 392; Bryce v. Butler, 70 N. C. 
585; State v. Davis, 87 N. C. 514; 
Stewart v. State, 2Jo Ala. 44 ; Marler 
V. State, 67 Ala. 55, 42 Am. Rep. 
95 ; Bushnell v. City Nat. Bank, 20 
La. Ann. 464; State v. Jackson, 29 
La. y\nn. 354; State v. Clark, 32 



Ark. 231 ; State v. Adams. 20 Kan. 
311; State v. Cole, 22 Kan. 474; 
People V. Geiger, 49 Cal. 643. See 
Cohea v. State, 11 Tex. App. 153; 
People V. Martin, 47 Cal. 112. 

"The declarations of each de- 
fendant, relating to the transaction 
under consideration, were evidence 
against the other, though made in 
the latter's absence, if the two were 
engaged at the time in the further- 
ance of a common design to de- 
fraud the plaintiffs. The court 
placed their admissibility on that 
ground, and instructed the jury 
that if they were made after the 
consummation of the enterprise, 
they should not be regarded."' 
Field, J., Lincoln v. Claflin, 7 Wall. 
138, 139, 19 L. ed. 109; Price v. 
State, 1 Okla. Crim. Rep. 358, 98 
Pac. 447; State v. Horseman, 52 Or. 
572, 98 Pac. 135 ; Van Wyk v. Peo- 
ple, 45 Colo. 1, 99 Pac. 1009; People 
V. l^eiss, 129 App. Div. 671, 114 N. 
Y. Supp. 236; Weisenbach v. State, 
138 Wis. 152, 119 N. W. 843; Wiley 
V. State, 92 Ark. 586, 124 S. W. 249 ; 
State V. Kennedy, 85 S. C. 146, 67 
S. E. 152; State v. Dean, 148 Iowa. 
566, 126 N. W. 692 ; State v. Flood. 
148 Iowa, 146, 127 N. W. 48; State 
V. Babbitt, 228 Mo. 252. 128 S. W. 
953; State v. Moeller, 20 N. D. 114, 
126 N. W. 568. 

' Com. V. J-Iarley, 7 Met. 462. 



1434 



EVIDENCE IN CRIMINAL CASES. [CHAP. XIV. 



cert between two or more to pass counterfeit notes, or any 
concurrent action in passing" them, the declaration of one is 
evidence against the other; and the possession of counterfeit 
notes by one is possession by the other.^ And this coresponsi- 
bility holds goods without regard to the time when the party 
entered the combination. He becomes subsequently responsible 
for everything which may be done or said by any one of the 
others, in furtherance of such common design.^" Thus, on an 
indictment against the owner of a ship for violation of tlie 
statutes against the slave trade, evidence of the declarations 
of the master, connected with acts in furtherance of the voy- 
age, and within the scope of his authority, as agent of the 
owner in the conduct of the guilty enterprise, is admissible 
against the owner, irrespective of the question of the time of 
entrance of the several parties into the plot,^^ and proof of 
such acts and declarations in furtherance of the common de- 
sign are admissible, although they occurred in the absence of 
the co-conspirators.^^ 



8 United States v. Hiiunan, 1 
Baldw. 292, Fed. Cas. No. 15,370. 

^^ Watson's Trial, 32 How. St. 
Tr. 7; Brandreth's Trial, 32 How. 
St. Tr. 857, 858; Hardy's Trial, 24 
How. St. Tr. 451-453, 475; Rex v. 
Hunt, 3 Barn. & Aid. 566, 22 Re- 
vised Rep. 485; 1 East, P. C. 97, 
§ 38; Nicholls v. Dowding, 1 
Starkie, 81, 18 Revised Rep. 746; 
American Fur Co. v. United States, 
2 Pet. 358, 365, 7 L. ed. 450, 453; 
United States v. Hinman, 1 Baldw. 
292, Fed. Cas. No. 15,370; Com. v. 
Crozvninshield, 10 Pick. 497; Gard- 
ner V. People, 4 III. 90; State v. 
Haney, 19 N. C. (2 Dev. & B. L.) 
390 ; Martin v. Com. 2 Leigh, 745 ; 
Kirby v. State, 7 Yerg. 259; Franlc 
V. State, 27 Ala. 38; People v. 
Uzvahah, 61 Cal. 142. 



11 United States v. Gooding, 12 
Wheat. 460, 6 L. ed. 693. 

12 Graff V. People, 208 111. 312, 70 
N. E. 299; Knox v. State, 164 Ind. 
226, 108 Am. St. Rep. 291, 72, N. E. 
255, 3 A. & E. Ann. Cas. 539 ; Com. 
V. Crowninshield, 10 Pick. 497 , 
State V. Gatlin, 170 Mo. 354, 70 S. 
W. 885; United States v. Francis, 
144 Fed. 520; Francis v. United 
States, 81 C. C. A. 407, 152 Fed. 
155 ; State v. Carey, 76 Conn. 342, 
56 Atl. 632; State v. Dickerhoff, 
127 Iowa, 404, 103 N. W. 350; How- 
ard V. Com. 110 Ky. 356, 61 S. W. 
756, 13 Am. Crim. Rep. 533 ; People 
V. McGarry, 136 Mich. 316, 99 X. 
W. 147; State v. Evans. 88 Minn. 
262, 92 N. W. 976; State v. Gatlin. 
170 Mo. 354. 70 S. W. 885 ; People 
V. Strauss, 94 App. Div. 453, 88 N. 



!§ 698a, 699] 



CONFESSIONS. 



1435 



§ 698a. Order of testimony in conspiracy. — As it some- 
times may interfere with the proper development of the case 
to require the trial to begin with proof of the conspiracy, in 
such case the prosecution may, on the trial, prove the declara- 
tions and acts of one made and done in the absence of the 
others, before proving the conspiracy between the defendants, 
though such proof will be treated as nugatory unless the con- 
spiracy be afterwards independently established.^ 

§ 699. Declarations not admissible after the conspiracy 
is at an end. — When the common enterprise is at an end, 
whether by accomplishment or abandonment, no one of the 
conspirators is permitted, by any subsequent act or declara- 
tion of his own, to affect the others.^ His confession, there- 



Y. Supp. 40, 18 N. Y. Crim. Rep. 
396, affirmed in 179 N. Y. 553, 71 
N. E. 1135; Com. v. Biddlc, 200 Pa. 
640, 50 Atl. 262; Segrest v. State. 
— Tex. Crim. Rep. — , 57 S. W. 
845 ; Nelson v. State, 43 Tex. Crim. 
Rep. 553. 67 S. W. 320 ; Barber v. 
State. — Tex. Crim. Rep. — , 69 S. 
W. 515. 

1 Wharton, Crim. Law, 8th ed. 
§ 1401 ; State v. Cardo::a, 11 S. C. 
195; Avery v. State, 10 Tex. App. 
199; People v. Brotherton. 47 Cal. 
388; Bloomer v. State, 48 Md. 521, 
3 Am. Crim. Rep. 37. See Baker 
V. State, 7 Tex. App. 612; Miller 
V. Barber, 66 N. Y. 558; Dole v. 
Wooldredge, 142 Mass. 161, 7 N. K. 
832; People v. Stokes, 5 Cal. App. 
205, 89 Pac. 997; Barrozv v. State. 
121 Ga. 187, 48 S. E. 950; State v. 
Davis. 48 Kan. 1, 28 Pac. 1092: 
State V. Kesner. 72 Kan. 87, 82 Pac. 
720. 

iPhil. & Am. on Ev. 215. note; 
Wharton, Ev. § 1206; United States 



V. IVhite, 5 Cranch. C. C. 38, Fed. 
Cas. No. 16,675; State v. Pike, 51 
N. H. 105; Heine v. Com. 91 Pa. 
145 ; State v. Cain. 20 W. Va. 679 ; 
Baker v. People, 105 III. 452; Dan- 
ville Bank V. IVaddill, 31 Gratt. 
469; Miller v. Com. 78 Ky. 15, 39 
Am. Rep. 194; State v. IVestfall. 
49 Iowa, 328, 3 Am. Crim. Rep. 343 ; 
Lynes v. State. 36 Miss. 617; State 
V. Duncan, 64 Mo. 262; Snoivdcn v. 
State, 7 Baxt. 482; Strady v. State. 
5 Coldw. 300; Clinton v. Estes, 20 
Ark. 216 ; People v. Collins, 48 Cal. 
277 ; People v. English, 52 Cal. 212 ; 
People V. Stanley, 47 Cal. 113, 17 
Am. Rep. 401 ; People v. Aleck, 61 
Cal. 137; State v. Soule, 14 Nev. 
453; State v. McGuire, 50 Iowa. 
153; People v. Opie. 123 Cal. 294. 
55 Pac. 989; Howard v. State, 109 
Ga. 137, 34 S. E. 330; Cloud v. Com. 
7 Ky. L. Rep. 818; State v. Ker:- 
nedy. \77 Mo. 98, 75 S. W. 979; 
State V. Myers, 198 Mo. 225. 94 S. 
W. 242; State v. Wells, 33 Mont. 



1436 



EVIDENCE IN CRIMINAL CASES. [CHAP. XIV 



fore, subsequently made, even though by the plea of guilty, 
is not admissible in evidence, as such, against any but him- 
self.^ Even the most solemn admission made by him after 
the conspiracy is at an end is not evidence against accomplices.^ 
Nor can the flight of one conspirator after such time be put in 
evidence against the others ; * and what one of the party has 
been heard to say at a time other than that of the conspiracy, 



291, 83 Pac. 476; People v. Squire, 
6 N. Y. Crim. Rep. 475; State v. 
Tice, 30 Or. 457, 48 Pac. 367 ; Com. 
V. Zuern, 16 Pa. Super. Ct. 588 ; 
Sessions v. State, 37 Tex. Crim. 
Rep. 62, 38 S. W. 623; IValls v 
State. 125 Ind. 400, 25 N. E. 457; 
Powers V. Com. 114 Ky. 237, 70 S, 
W. 644, 1050. 71 S. W. 494 ; People 
V. Fox, 142 Mich. 528, 105 N. W. 
1111; Goll V. United States, 92 C. 
C. A. 171, 166 Fed. 419; People v. 
Sidelinger, 9 Cal. App. 298. 99 Pac. 
390; Gardner v. State, 55 Te.x. 
Crim. Rep. 394. 117 S. W. 140; 
Miller V. State, 139 Wis. 57, 119 N. 
W. 850; Lowman v. State, 161 Ala. 
47, 50 So. 43 ; Sorenson v. State, 74 
C. C. A. 468. 143 Fed. 820; Cow. 
V. Ellis, 133 Ky. 625, 118 S. W. 973; 
Sturgis v. State, 2 Okla. Crim. Rep. 
362, 102 Pac. 57 ; Hanger v. United 
States, 97 C. C. A. 372. 173 Fed. 54 ; 
JViley V. State, 92 Ark. 586, 124 S. 
W. 249 ; State v. Smith, 55 Or. 408, 
106 Pac. 797; Snelling v. State. 57 
Tex. Crim. Rep. 416, 123 S. W. 610; 
Couch V. State, 58 Tex. Crim. Rep. 
505, 126 S. W. 866. See Eggleston 
V. State, 59 Tex. Crim. Rep. 542. 
128 S. W. 1105. 

^Re.v V. Stone. 6 T. R. 528, 3 Re- 
vised Rep. 253; Rex v. Turner. 1 
Moody. C. C. 347; Rex v. Appleby. 
3 Starkie, 33. See Melen v. An- 



drews, 1 Moody & M. 336, 31 Re- 
vised Rep. 736; State v. Fuller, 39 
Vt. 74; Com. v. Thompson, 99 
Mass. 444; Flunter v. Com, 7 Gratt. 
641, 56 Am. Dec. 121; Hudson v 
Com. 2 Duv. 531 ; Rufer v. State. 
25 Ohio St. 464; People v. Stevens, 
A7 Mich. 411, 11 N. W. 220; People 
V. Arnold, 46 Mich. 268, 9 N. W. 
406; State v. Hickman, 75 Mo. 416: 
Spencer v. State, 31 Tex. 64; Ake 
V. State, 31 Tex. 416. 

3 Rex V. Hearne, 4 Car. & P. 215 ; 
Rex V. Fletcher, 4 Car. & P. 250; 
Hall's Case, Lewin, C. C. 110; Rex 
V. Walkley, 6 Car. & P. 175; Com. 
V. Ingraham, 7 Gray, 46; Ormsby v. 
People, 53 N. Y. 472; Hook v. 
Boteter, 3 Harr. & McH. 349; 
Morrison v. State. 5 Ohio, 439; 
State V. Arnold. 48 Iowa, 566; State 
V. Poll. 8 N. C. (1 Hawks) 442, 9 
Am. Dec. 655; State v. Hauev. 10 
N. C. (2 Dev. & B. L.) 390; State 
V. Rawlcs. 65 N. C. 334; Kirby v. 
State, 7 Yerg. 259; Jones v. Com. 
2 Duv. 554; Laivson v. State, 20 
Ala. 66. 56 Am. Dec. 182; Gore v. 
State, 58 Ala. 391 ; State v. Weasel. 
30 La. Ann. 919; Brown v. State, 
57 Miss. 424; People v. Moore, 45 
Cal. 19; Phillips v. State. 6 Tex. 
App. 36-1 

'^People V. Stanley, 47 Cal. 11.3, 
17 Am. Rep. 401. 



§ 700] CONFESSIONS. 1437 

as to the share which the others had in the execution of the 
common design, or as to the object of the conspiracy, cannot 
be admitted as evidence against them.* But the mere flight 
of a conspirator, after performance of an overt act, does not 
preclude the declarations of his co-conspirators, immediately 
after the act, from being put in evidence against him.® Nor 
is a confederacy in larceny terminated by the mere taking. It 
continues until the articles are distributed.' And in other 
offenses, acts and declarations after commission of the crime, 
and until the purpose of the conspiracy is complete, are ad- 
missible.' 

§ 700. Rule not affected by parties being codefend- 
ants. — It makes no difference as to the admissibility of 
the act or declaration of a conspirator against a defendant, 
whether the former is indicted or not, or tried or not, with 
the latter; for the making one a codefendant does not make 
his acts or declarations any more evidence against another 
than they were before; the principle upon which the}^ are ad- 

5 1 Phillipps, Ev. 94; Rex v. 50 L. ed. 899, 26 Sup. Ct. Rep. 560, 

Salter, 5 Esp. 125 ; Rex v. Watson, 5 A. & E. Ann. Cas. 783 ; Baldwin 

2 Starkie, 141, 11 Eng. Rul. Cas. v. State, 46 Fla. 115, 35 So. 220; 

145 ; Rex v. Roberts, 1 Campb. 399, Carter v. State, 106 Ga. Z72, 71 Am. 

2 Leach, C. L. 987, note; State v. St. Rep. 262, 32 S. E. 345, 11 Km. 

Poll, 8 N. C. (1 Hawks) 442, 9 Crim. Rep. 125; State v. Soper, 113 

Am. Dec. 655; State v. Hancy. 19 Iowa, 1, 91 N. W. 774; Shotivell v. 

N. C. (2 Dev. & B. L.) 390; Kirby Com. 23 Ky. L. Rep. 1649, 65 S. \\\ 

V. State, 7 Yerg. 259. See Rex v. 820; State v. Stevenson, 26 Mont. 

Hunt, 3 Barn. & Aid. 566, 22 Re- 332, 67 Pac. 1001; Lamb v. State, 

vised Rep. 485; V/rioht v. State. 69 Neb. 212, 95 N. W. 1050 ; 0'5nV/t 

43 Tex. 170; Reg. v. Murphy, 8 Car. v. State, 69 Neb. 691, 96 N. W. 649; 

& P. 297; Reg. v. Shellard, 9 Car. People v. Hall, 51 App. Div. 57, 64 

& P. 277. N. Y. Supp. 433, 15 N. Y. Crim. 

^Shields V. State, 45 Conn. 266. Rep. 29; Long v. State. 55 Tex. 

"^ Scott V. State, 30 Ala. 503; Crim. Rep. 55, 114 S. W. 632; ^//to;t 

O'Neal V. State, 14 Tex. App. 582. v. United States, 90 C C. A. 116, 

» Rawlins v. State, 124 Ga. 31. 52 163 Fed. 810. 
S. E. 1. See s. c. 201 U. S. 639^ 



1438 EVIDENCE IN CRIMINAL CASES. [CIIAP. XIV- 

niissible at all being that the act or declaration of one is the 
act or declaration of all united in one common design, a prin- 
ciple which is wholly unaffected by the consideration of their 
being jointly indicted.^ 

§ 700a. Decoy not a co-conspirator. — A person acting 
as a decoy is not in law a confederate, so that his acts may be 
imputable to the principal.^ 

§ 701. Form of prosecution not material. — It is not ma- 
terial what the nature of the indictment is, provided the of- 
fense involve conspiracy. Upon an indictment for murder, 
for instance, if it appears that others, together with the prison- 
er, conspired to perpetrate the crime, the act of one done in 
pursuance of that intention would be evidence against the rest.* 
But there must be such a conspiracy as would make the one 
party the agent of the other. Hence the admissions of A, 
charged with adultery with B, are not, without showing con- 
spiracy, admissible against B.* 

§ 702. Principal's acts admissible against accessory. — 

Where the accessory is tried alone before conviction of the 

^Rex V. Stone, 6 T.R.52S, 3 Rt- 141 Fed. 811; Slaughter v. State, 

vised Rep. 2.=:3 ; Rex v. Hearne, 4 113 Ga. 284, 84 Am. St. Rep. 242. 

Car. & P. 215; Rex v. Fletcher, 4 38 S. E. 854; Graff v. People, 208 

Car. & P. 250 ; //a//'.y Ca.y^, 1 Lewin, 111. 312, 70 N. E. 299; State v. 

C. C. 110; Rex v. Walkley, 6 Car. IVackernagel, 118 Iowa, 12, 91 N. 

& P. 175; Com. v. Ingraham, 7 W. 761; State v. Wilson, 72 Minn. 

Gray, 46; People v. Stevens, 47 522, 75 N. W. 715. See Donald v, 

Mich. 411, 11 N. W. 220; Lawson State, 21 Ohio C. C. 124. 

V. State, 20 Ala. 66, 56 Am. Dec. ^ Williams v. State, 55 Ga. 391, 1 

182; State v. Weasel, 30 La. Ann. Am. Crim. Rep. 413. See supra, 

919; State v. Carroll, 31 La. Ann. § 440; Price v. People, 109 III. 109. 

860. See Banks v. State, 13 Te.x. i Rex v. Stone, 6 T. R. 528, 3 Re- 

App. 182; Avery v. State, 10 Tex vised Rep. 253; Heard v. State. 9 

App. 199. See supra, § 37 ; Sprinkle Tex. App. 1. 

V. United States, 73 C. C. A. 285, '^ State v. McGuire, 50 Iowa, 153. 



§§ 703, 704] CONFESSIONS. 1439 

principal, and when confederacy between the two has been 
shown, acts and conduct of the principal, immediately follow- 
ing the commission of the ofTense, and tending to show that 
he committed it, are competent evidence to prove their common 
guilt.^ And generally, as soon as the confederacy is proved, 
the acts and declarations of the one are admissible against 
the other.^ 

§ 703. Declarations of co-conspirators in each other's 
favor. — A declaration of a conspirator in favor of a fel- 
low conspirator cannot, from the nature of things, be put in 
evidence, unless part of the res gcstcc, or part of a conversation 
introduced by the prosecution.^ Such evidence, if not admis- 
sible on other grounds, is inadmissible as hearsay.^ 

XV. General Principles of Confessions. 

§ 704. General conclusions. — The general distrust of 
confession evidence arises not from the confession itself, but 
from the testimony adduced to prove the confession. The 
danger is at this point, for a well-proved confession is con- 
clusive, and nothing can so persuasively influence the court 
as the fact of a clearly proved and direct admission of guilt, 
but the temptation to substitute the false for the real, and to 
impose the false for the real, leaves the court in great doubt, 

^ State V. Rand, Z2> N. H. 216. Lyon v. State, 22 Ga. 399; Taylor 

See Baker v. State, 7 Tex. App. v. State, 11 Lea, 708; Edivards v. 

612 ; supra, § 689 ; Levy v. People. State, 27 Ark. 493 ; Draper v. State, 

80 N. Y. 329. 22 Tex. 400; Wright v. State, 10 

^Reg. V. Pym, 1 Cox, C. C. 340; Tex. App. 476; State v. McNamara, 

United States v. Hartivell, 3 Cliff. 3 Nev. 70. 

233, Fed. Cas. No. 15,318; State v. For admissibility of declarations 

Hudson, 50 Towa, 157 ; supra, §§ of co-conspirators as part of the 

237, 602. res gcstcc, see note in 19 L.R.A. 745. 

1 United States v. Douglass, 2 2 Supra, § 225. 
Blatchf. 207, Fed. Cas. No. 14,989: 



1440 EVIDENCE IN CRIMINAL CASES. [CHAP. XIV. 

and has led to those extreme ruHngs, both for and against 
the admission of confessions, that cannot be reconciled. 

It is a very grave question as to whether or not any instruc- 
tion should be given to the jury on the weight of the confes- 
sion. Thus, it has been held that an instruction as to alleged 
confessions, stating that where they were shown to have been 
understandingly made and correctly remembered, and sub- 
stantially repeated by the witness, they were "entitled to great 
weight" is erroneous, as invading the province of the jury;^ 
and, on the other hand, it is not error to refuse an instruction 
stating that "evidence of confessions is the weakest and least 
to be relied on of any evidence known to be competent in 
law." 2 

If confessions were to be considered just as any other cir- 
cumstantial evidence, it would solve many of tlie perplexities. 
The situation is best expressed in the words of Mr. Joy, which 
are as applicable to-day as when written in 1842 : "It appears 
inaccurate to give to all kinds of confessions the same con- 
fidence, or to treat them alike with distrust. Like all other 
kinds of admissions, they admit of all shades of certainty 
and probability, from a solemn estoppel by matter of record 
to the slightest presumption arising from the most casual, 
suspicious, or doubtful expressions. The jury are not only 
entitled, but bound, to take into account all the circumstances 
under which a confession is made, and to give little weight to 
it, or to throw it out of view altogether, according as these 
circumstances appear to incline less or more against the ad- 
mission." 

1 State V. Willing, 129 Iowa. 72. 2 Qriner v. State, 121 Ga. 614. 49 

105 N. W. 355; People v. Buckley, S. E. 7C0. See Calvin v. State, 118 
143 Cal. 375, 77 Pac. 169. See Ga. 73, 44 S. E. 848 ; Perry v. State, 
Horn V. State, 12 Wyo. 80, 127, 73 110 Ga. 234, 36 S. E. 781. 
Pac. 705. Burnett v. People, 204 
III. 208. 66 L.R..\. 304, 98 Am. St. 
Rep. 206, 68 N. E. 505. 



^ 705] CONFESSIONS. 1441 

§ 705. General principles of the law of confessions. — 
There are certain well-defined principles underlying the law 
of confessions that determine the admissibility or inadmis- 
sibility of the confession itself. First, a confession is not 
admissible in evidence where it is obtained by a direct tem- 
poral inducement arising out of threat or fear or hope or 
promise. Second, a confession is not admissible in evidence 
where it is made subsequent to an inadmissible confession, un- 
til it is shown that the influence that caused the first confes- 
sion has ceased to operate in any way upon the accused. 

A confession is admissible when made without inducement. 
Such a confession is not afifected (a) by the mere fact that it 
was made where the accused was under arrest; nor (b) where 
it was elicited by questions assuming guilt; nor (c) by promise 
of collateral benefit; nor (d) procured by trick or artifice; 
nor (e) when made to a person in authority. 

The factors to be considered by the court in determining 
whether or not the confession offered was elicited by improper 
inducement are the age, situation, and character of the ac- 
cused, his mental condition as to control of his faculties, the 
causal connection between the inducement and the confession, 
the nature of the inducement, and such surrounding circum- 
stances as are shown in the concrete case on trial. 

The inculpatory facts disclosed by the confession are always 
admissible in evidence, without regard to the admissibility 
or inadmissibility of the confession itself. 
Crim. Ev. Vol. II.— 91. 



CHAPTER XV. 

PRESUMPTIONS. 

I. General Consideration. 

§ 707. Presumptions of law; definition; classes. 

708. Qassifications. 

709. Presumptions not known to the Roman law. 

710. Origin of present classifications. 

711. Decrease of irrebuttable presumptions. 

712. Presumptions in modern Roman law. 

713. Modern classification in our own law. 

714. Presumptions of law and presumptions of fact. 

715. Statute may declare that certain facts constitute presumptions oi 

law. 
715a. Statutory presumptions ; constitutionality. 

716. Ambiguity of terms. 

II. Psychological Presumptions. 
§ 717. Motives. 

718. Presumption of innocence. 

719. Confession and avoidance. 

719a. Presumptions of innocence not applicable to civil actions. 

720. Measure of proof to overcome presumptions. 

721. Major and minor offense. 

722. Inferences from facts. 

723. All persons presumed to know the law. 

724. Knowledge admissible to prove intent. 

725. Knowledge of facts a presumption of fact. 

726. Presumption against suicide. 

727. Presumption of good faith in business relations. 

728. Presumptions applied to documents. 

729. Presumption of sanity. 

730. Insanity presumed ta. continue. 

731. Insanity; how shown; inquisition. 

732. Presumption of prudence in avoiding danger. 

733. Presumption of supremacy of husband. 

734. Presumption that probable consequences of an act are intended. 

735. Process is one of logic. 

736. Illustrations of rule. 

1442 



PRESUMPTIONS. 1443 

§ Til. Roman law to the same effect. 

738. Malice not to be arbitrarily presumed from killing. 

739. Nor from other hurtful act. 

740. Combination of intentions no defense. 

741. Presumptions arising from mutilation of documents. 

742. Forging evidence gives rise to prejudicial inferences. 

743. With a view to self-exculpation. 

744. With intent of injuring others. 

745. For speculative or moral end. 

746. But forgery of evidence is not conclusive of guilt. 

747. Presumption varies with case. 

748. Suppression or obstruction of evidence. 

749. Inference when evidence is withheld. 

750. Inferences from attempts to escape. 

•751. Inference from actions and conduct of accused. 

752. Evidence explaining flight. 

753. Inferences from antecedent preparations. 

754. Acts to ward off suspicion. 

755. Such proof is open to rebuttal. 

756. Defendant's declarations of intent and threats admissible for pros- 

ecution. 

757. Deceased's threats admissible for defense. 

758. Inferences from possession of stolen goods. 

759. Posssession must be recent. 

760. Inferences where property possesses identifying marks. 

761. Accused's explanation of possession. 

762. Inferences in embezzlement and murder. 

763. Inferences in burglary. 

III. Inferences from Mechanism of Crime. 

§ 764. Inference from instrument used. 

765. Inference from condition of weapon. 

766. Inference from position of weapon. 

767. Inference from condition of dress. • 

768. Inference from ownership of weapon. 

769. Inference from wound. 

770. Inference from powder marks on body. 

771. Inference from direction of wound. - 

772. Inferences of skill from wound. 
nZ. Inferences from left-handedness. 

774. Adaptation of instrument to wound. 

775. Inference from number and location of wounds. 

776. Inferences from other indications on injured party. 
m . Inference from blood stains. 

777a. Human blood cannot be distinguished beyond a reasonable doubt 
from other blood. 



1444 EVIDENCE IN CRIMINAL CASES. [CHAP. XV. 

§ 778. Collateral inferences. 

779. Inference from things adhering to weapon. 

780. Indications as to whether marks on body were after death. 

781. Indications whether Wounds were homicidal or suicidal. 

782. Inferences in hanging. 

783. Inferences in drowning. 

783a. Physical experiments as a basis for inferences. 

IV. Inferences from Liability to Att.^ck. 
§ 784. Rapacity, old grudge, jealousy. 

V. Distinctive Inferences in Marital Homicides. 
§ 785. Inferences from marital crimes. 

786. Inferences from ill-treatment of wife by husband. 

VI. Distinctive Inferences in Poisoning. 
§ 787. Exact demonstration not required. 

788. Proof of poisoning in remains should not be received without 

proof of identity of remains. 

789. Inference from possession of poison by defendant. 

790. Inference from position of deceased. 

791. Inferences from conduct. 

792. Duration of working of poison. 

793. Duration of sickness as indicating poison. 

794. Inference of malice in poisoning. 

VII. Inferences from Extrinsic Indicvtory Proof. 
§ 795. In general. 

796. Inferences from footprints and other marks on soil. 

797. Place of crime and jury view. 

798. Similar inferences in other cases. 

799. Inference from inculpatory instruments. 

VIII. Physical Presumptions. 

§ 800. Infants presumed incapable of matrimony. 

801. Infants presumed incapable of crime. 

802. Identity inferable from name. 

803. Presumption of continuance of appearance and voice. 

804. Cautions in applying this inference to deceased persons. 

805. Inference as to photographs. 

806. Identification dependent upon opportunities of observation and ac- 

curacy of memory. 

807. Comparative weight of opinions. 

808. Testing witness's memory as to identity of person. 

809. Presumption of death after unexplained absence of seven years. 

810. Presumption of continuance of life. 

811. Inference as to date of death of absent person. 

812. Inference as to fact of death. 

813. Letters testamentary not collaterally proof of death. 



PRESUMPTIONS. 1445 

§ 814. Death without issue. 
815. Presumption of loss of ship from lapse of time. 

IX. Presumptions of Uniformity and Continuance. 

§ 816, Presumption of continuance of existing conditions. 

817. Residence presumed to be continuous. 

818. Occupancy presumed to be continuous. 

819. Habits presumed to be continuous. 

820. Marriage presumed to continue. 

821. Presumption as to solvency or insolvency. 

822. Presumptions as to foreign laws and foreign judgments. 

823. Constancy of nature presumed. 

824. Physical sequences to be presumed. 

825. Presumptions from habits of animals. 

826. Inferences as to conduct of men in masses. 

X. Presumptions of Regularity. 

§ 827. Marriage presume.' to have been regular. 
827a. Presumption of continuance of illicit relations. 

828. Legitimacy a presumption. 

829. Presumption as to judicial records. 

830. Presumption in support of verdict. 

831. Presumption of regularity as to legislative proceedings. 

832. Presumption as to execution of documents. 

833. Presumption of regularity as to appointment of and performance 

of duties by an officer. 

834. Presumption as to professional status. 

835. Presumption of regularity attaches to administrative or judicial 

officers. 

836. Burden of proof is on party charging public officer with mis- 

conduct. 
836a. Authority for corporate or official act presumed. 

837. Mailing letter prima facie proof of delivery. 

838. Presumption as to time of delivery of letter. 

839. Presumption from postmark. 

840. Presumption from manner of delivery. 

841. Presumption of genuineness of answer to a letter mailed. 

842. Presumption as to telegrams. 

843. Presumption from method of mailing letter. 

XI. Distinctive Inferences in Forgery. 
§ 844. Genuineness of handwriting. 

845. Opinion of writer. "' 

846. Opinion of those who know his hand. 

847. Opinion of experts. 

848. Chemical and microscopic tests. 

849. Inferences from circumjacent tests. 



1446 EVIDENCE IN CRIMINAL CASES. [CHAP. XV. 

§ 850. Inference from falsity of contents. 
851. Proof of writing by third party. 

I. General Considerations. 

§ 707. Presumptions of law; definition; classes. — A 

presumption of law is a judicial postulate that a particular 
predicate is universally assignable to a particular subject.^ A 
presumption of fact is a logical argument from a fact to a 
fact ; or, as the distinction is sometimes put, it is an argument 
which infers a fact otherwise doubtful, from a fact which is 
proved.^ Hence, a presumption of fact, to be valid, must rest 
on a fact in proof.* 

§ 708. Classifications. — Presumptions are usually class- 
ified as follows: 1. Irrebuttable or absolute presumptions of 
law, prcesiimp Hones juris et de jure. 2. Rebuttable or pro- 
visional presumptions of law, prcosumptiones juris. 3. Pre- 
sumptions of fact, prcesumptiones hominis; which presump- 
tions are always rebuttable, and are determinable by free logic. 

§ 709. Presumptions not known to the Roman law. — 
The classical Roman law recognized only two kinds of evi- 

* See post, § 714. 296; People ex rel. Philmot v. 

2 Windscheid's Pandekt i, § 138. Messing, 28 111. 410; Graves v. Col- 

8 Best, Ev. 95; Douglass v. Mit- well, 90 111. 612; Allison v. State, 

chell, 35 Pa. 440; United States v. 42 Ind. 354; Hamilton v. People, 

Ross, 92 U. S. 284, 23 L. ed. 708; 29 Mich. 193, 1 Am. Crim. Rep. 

Manning v. John Hancock Mut. L. 618 ; Frost v. Brown, 2 Bay, 133 ; 

Ins. Co. 100 U. S. 693, 25 L. ed. Bach v. Cohn, 3 La. Ann. 103 ; Pen- 

761 ; Rex v. Biirdett, 4 Barn. & Aid. nington v. Yell, 11 Ark. 212, 52 Am. 

161, 22 Revised Rep. 539; Rich- Dec. 262; Lawhorn v. Carter, 11 

mond V. Aiken, 25 Vt. 324; Tanner Bush, 7; People v. Carrillo, 54 Cal. 

V. Hughes, 53 Pa. 289; McAleer v. 63; Bonnier, Traite des Preuves, ii. 

McMurray, 58 Pa. 126, 6 Mor. Min. 387, 420. See Mead v. Parker, 115 

Rep. 606; Justice v. Lang, 52 N. Y. Mass. 413, 15 Am. Rep. 110. 
323; O'Gara v. Eisenlohr, 38 N. Y. 



§ 710] PRESUMPTIONS. 1447 

dence: (1) persons (testes), and (2) things {instr amenta) . 
Both testes and instrumenta were to be weighed by the stand- 
ard of logic appHed to the case as it came up, and not by that 
of technical jurisprudence announced before the case was 
heard.^ In the whole of the corpus juris we meet with no 
such expressions as prcesumptio juris and prcesimiptio hominis.^ 
By the classical Roman law, what we now call presumptions 
were at the highest only inferences from facts in proof.' The 
question of the force of such inference was for the logician; 
and though they are noticed frequently by the jurists, they are 
styled not prcesumptiones, but signa, argumenta, or exempla.* 

§ 710. Origin of present classifications. — Under the 
schoolmen, however, to whom we owe several ponderous treat- 
ises on presumptions and proofs, still cited as authoritative, 
a new era came in. There was no such thing, when the 
schoolmen wrote, as a practical jurisprudence, with its two 
distinctly marked provinces of law and fact. There were no 
juries, and but few competent judges; and the object of those 
who then wrote law books was to deprive those to whom the 
trial of cases was to be committed, of any discretion as to the 
value they were to attach to evidence produced before them. 
Hence, the scholastic jurists devoted themselves to construct- 
ing a series of maxims by which every case they could con- 
ceive of was to be ruled. We may take as an illustration the 
maxim, so frequently adopted in our own books, that an old 
grudge, when proved, is presumed to continue, so that a homi- 
cide committed by a person who is shown to have previously 
harbored a grudge against the deceased is to be considered 
malicious. As a general psychological proposition, we might 
be ready to assert the same principle even now; yet who 

» Wharton, Ev. § 1228. ^ See Durant, i, c, nr, 19; Ende- 

2 Bonnier (Traite des Preuves. mann, Beweislehre, § 19. 
ii. 417). *See Quinct, v. c. 8. 



1448 EVIDENCE IN CRIMINAL CASES. [CHAP. XV. 

would now undertake to say that this proposition is to rule 
every case of homicide in which an old grudge is proved? 
"Do you not know," so one familiar with human nature would 
argue, "that there are no two persons in whom an old grudge 
operates precisely in the same way? Do not some persons 
harbor old grudges tenaciously for years, while others speed- 
ily forget them? Do not soldiers, for instance, whose war- 
fare is open and direct, whose enemies are impersonal, rather 
than personal, whose scenes of action frequently change, 
and who are fully absorbed in each new event as it rushes in. 
rapidly forget old grudges ; and do not, on the other hand, 
secluded men, in the habit of nursing single passions in soli- 
tude, nourish old grudges for years?" "Yes, indeed," so 
would answer the casuist, "this is all true, so I will provide 
some additional rules." "A soldier," so the proviso would 
run, "is presumed to hold to an old grudge only until he en- 
gages in some new absorbing enterprise." "But suppose your 
soldier to be a man of dark purposes, who has been concerned 
continuously in bitter feuds of which the homicide with which 
he is charged is part." "For this case, also," answers the 
casuist, "we will provide a rule. With such persons old grudg- 
es are presumed to continue indefinitely." It is in this way 
the old scholastic books on presumptions were made up. Cer- 
tain psychological rules, reached by an induction sometimes 
very imperfect, were announced as exhaustively covering the 
whole sphere of crime. A soldier, for instance, to take the 
modification of the doctrine of old grudge given above, is 
shown to have been involved for years in a private feud, and 
in apparent pursuance of this feud he commits a homicide. If 
so, the homicide is presumed to be malicious; and it does not 
avail him to show that the old grudge was really, at the time 
of the encounter, dormant in his breast, and was suddenly 
stung into unrestrainable fury b}^ an atrocious attack. Nor 
was it only the domain of psychology that these presumptions 



§711] PRESUMPTIONS. 1449 

seized. They took equal possession, and with greater plausi- 
bihty, of the realms of physical science. Conclusions which 
the science of the day regarded as established, the jurispru- 
dence of the day treated as absolute and irrebuttable. Hence 
the books were filled with rules, called irrebuttable presump- 
tions of law, many of which were false in fact, and others 
subject to such numerous exceptions that at the best they are 
only prima facie authoritative. 

§ 711. Decrease of irrebuttable presumptions. — The as- 
signment of irrebuttability to presumptions, however, is as 
repugnant to the practical jurisprudence of common life as it 
is to the philosophical jurisprudence of classical Rome. There 
is no such thing, so we learn when we compare criminal trials, 
as either an old grudge, or an evil intent, or a negligence, 
which reproduces itself without variation. Every new trial 
presents some new combinations which require independent in- 
duction. And when we come to physical laws, the impossi- 
bility of establishing irrebuttable presumptions as rules to de- 
termine each case in advance becomes still more manifest. 
Human nature as an aggregate may be the same now as it 
was in the days of the schoolmen, though in no two persons 
do the same phases of human nature present themselves. But 
physical nature is now very different from what it was in the 
days of the schoolmen, or even from what it was fifty years 
ago.^ That a man cannot be, in the same week, in Rome and 
in London, was not long since an irrebuttable presumption ; 
it is no presumption at all at present. That information can- 
not be passed instantaneously from one business center to an- 
(3ther was, in the twelfth century, irrebuttably presumed; in 
the nineteenth century most of our important contracts are 
JDased on telegrams. That the human voice cannot be heard 
a mile off, so as to distinguish words, might have been ir- 

iSce Mill's Logic, i. 389. 



1450 EVIDENCE IN CRIMINAL CASES. [CHAP. XV. 

rebuttably presumed ten years ago ; at present, in all our great 
commercial marts, persons may converse by telephone at a 
distance of several miles. And under no conditions can a 
particular state of mind be irrebuttably assigned to any par- 
ticular person. That an appropriate intent is assignable to 
an ideal man doing an ideal act may be speculatively true; 
that such an intent is to be assumed in advance of a trial can- 
not be practically accepted by courts having to do with real 
men, put on trial for acts, many of which were without motive 
{e. g., in issues of negligence), and many of which were done 
suddenly, in heedlessness, in passion, in self-defense, or 
through necessity. Hence it is that the old presumption juris 
et de jure are gradually disappearing. This, indeed, is ad- 
mitted by Mr. Best,^ when he tells us that certain presumptions 
which, in earlier times, w^ere deemed absolute and irrebuttable, 
have, by the opinion of later judges, acting on more enlarged 
experience, either been ranged among prcBsiimptiones juris 
tantum, or considered as presumptions of fact to be made at 
the discretion of a jury.^ The consequence is that our courts, 
even while holding to the old phraseology, are so far con- 
tracting the range of presumptions juris et dc jure that, while 
the class is still said to exist, no perfect individuals of the class 
can be found. The unimpeachability of records is still spoken 
of as a presumption juris et de jure; but whatever may be the 
name given to this presumption, it vanishes when it is con- 
fronted by proof of fraud or oppression,* 

§ 712. Presumptions in modern Roman law. — While in 
our own law prcrsuniptiones juris et de jure preserve an ex- 
istence which is now merely titular, in the modern Roman law, 
as taught by its most authoritative commentators, even this 

2 Best, Ev. § 307. * Supra, § 595. See Wharton, 

3 Ph. & Am. Ev. 460; 1 Phillipps, Ev. § 790. 
Ev. 10th ed. 469. 



§ 713] PRESUMPTIONS. 1451 

titular recognition is refused. The scholastic prcBSumptiones 
juris et dc jure, it is held by the best French and German com- 
mentators on this particular topic,^ are resolvable into the 
following classes : 

1. Conclusions from natural laws, the disproval of which 
is impossible. 

2. Processual rules, enacted to facilitate litigation that in 
the long run is just, or to check litigation that in the long run 
is vexatious. 

3. Fictions, which, though false, are assumed by the policy 
of the law. 

4. Statutory presumptions, such as those introduced, by 
way of limitation, to quiet titles, or (as in the case of the 
statute of frauds) to exclude inferior and unreliable proof.* 

§ 713. Modem classification in our own lavv^. — The mod- 
ification, just noticed, of the old classification of presumptions, 
avoids what is evil in that classification, and retains what is 
good. By getting rid of the term "irrebuttable presumptions," 
we not only remove a series of presumptions really rebuttable, 
from a category to which they do not belong, but we relieve 
the practical administration of justice from the embarrass- 
ments which are produced by judges applying, in their char- 
ges to juries, the term "irrebuttable" to presumptions which 
are open to disproof.^ On the other hand, we retain, restor- 
ing them to their proper place, those leading axioms of law 
{e. g., the postulates that all persons are cognizant of the law 
to which they are subject, and that all sane persons are re- 
sponsible for their acts) which were once called presumptions 

^ See Endemann's Beweislehre. Preuves, ii, 387-414, et seq. ; supra, 

85-94; Burckhard, Civilistiche notes to § 708. 

Prsesumtionen, 369, et seq.; 11 ^ Post, §§ 715, 716a. 

Vierteljahrschrift fiir Gesetzge- ^ See Wharton, Crim. PI. & Pr. 

bung, 601 ; Bonnier, Traite dcs § 794. 



1452 EVIDENCE IN CRIMINAL CASES. [CHAP. XV. 

juris et de jure, but which are really among the necessary 
principles from which jurisprudence starts. 

§ 714. Presumptions of law and presumptions of fact. — 

Dropping, therefore, the term prcosumptiones juris et de jure, 
as unnecessary, as well as unphilosophical, we proceed to dis- 
cuss, as the subject of the present chapter, presumptions of 
law in their general sense, and presumptions of fact. Our 
first duty will be to inquire in what these presumptions differ. 
And on examination, the points of difference will be found 
to be as follows : 

1. A presumption of law derives its force from jurispru- 
dence as distinguished from logic. A statute, for instance, 
may say that a mother who conceals the death of her bastard 
child is to be presumed to have been concerned in its destruc- 
tion. This is a presumption of law, and is arbitrarily to be 
applied wherever such concealment is proved. 

If there be no such statute, then logic, acting inductively, 
will have to establish a conclusion to be drawn from all the 
circumstances of the particular case. Or a statute may pre- 
scribe that all persons wearing concealed weapons are to be 
presumed to wear them with an evil intent. This would be a 
presumption of law, with which logic would have nothing to 
do. On the other hand, whether a particular person who 
carries a concealed weapon, there being no such statute, does 
so with an evil intent, is a question of logic {i. e., probable 
reasoning, acting on all the circumstances of the case) with 
which technical jurisprudence has no concern. It is not neces- 
sary, however, to a presumption of law, that it should be 
established by statute, in our popular sense of that term. Stat- 
ute, in its broad sense, includes judicial maxims established 
by the legislature. The prominent maxims of this kind are 
the presumptions of innocence, of knowledge of the law, and 
of sanity. Presumptions of law, therefore, are uniform and 



§ 714] PRESUMPTIONS. 1453 

constant rules, applicable only generically. Presumptions of 
fact, on the other hand, are conclusions drawn by free logic, 
applicable only specifically.^ 

2. To a presumption of law probability is not necessary; 
but probability is necessary to a presumption of fact. Noth- 
ing, for instance, can be more improbable than that all law- 
breakers know the law which they break; yet there is no per- 
son to whom this presumption is not applied. Nor is there 
even a faint probability that all the persons in prison at a 
particular time are innocent; yet, no matter how overpower- 
ing may have been the evidence adduced against him, there 
is no one of them who is not presumed to be innocent when he 
goes to his trial. On the other hand, without probability, there 
can be no presumption of fact. A man is not presumed to 
have intended an act, for instance, unless it is probable he 
intended it. 

3. Presumptions of law relieve, either provisionally or ab- 
solutely, the party invoking them from producing evidence; 
presumptions of fact require the production of evidence as 
a preliminary. The presumption of innocence, for instance, 
makes it provisionally unnecessary for me to adduce evidence 
of my innocence. On the other hand, until I am proved to 
have done a thing, there can be no presumption against me 
of intent. Evidence, therefore, which is the necessary an- 
tecedent to presumptions of fact, is attached to presumptions 
of law only as a consequent. Presumptions of law stand at 
the gate of entrance, prescribing the terms on which evidence 
is to be received. Presumptions of fact stand at the gate 
of exit, determining the effect to be assigned to each fact which 
passes the ordeal of admissibility. 

4. The conditions to which are attached presumptions of 
law are fixed and uniform; those which give rise to presump- 

1 See Hamilton v. People, 29 People v. Messersmith, 61 Cal. 
Mich. 193, 1 Am. Crim. Rep. 618 ; 246 ; Grumbine v. State. 60 Md. 355. 



1454 EVIDENCE IN CRIMINAL CASES. [CHAP. XV. 

tions of fact are inconstant and fluctuating. For instance : all 
persons charged with crime are presumed to be innocent. 
Here the condition is fixed and uniform; it involves but a 
single, incomplex, unvarying feature, charged with crime; it 
is true as to all persons embraced in the category. On the oth- 
er hand, the presumption of fact, that doing involves in- 
tending, varies with each particular case, and there are no 
two cases which present the same features.^ Persons charged 
with crime may be sane or insane; may be adults or infants; 
may be at liberty or under coercion ; in each case, so far as con- 
cerns the presumption of law, they are persons charged with 
crime, and the presumption applies equally to each. But 
whetlier a person doing an act is sane or insane, is an adult 
or an infant, is at liberty or under coercion, is essential in 
determining intent. Presumptions of fact, in other words, 
relate to unique conditions, peculiar to each case, incapable of 
exact reproduction in other cases; and a presumption of fact 
applicable to one case, therefore, is inapplicable, in the same 
force and intensity, to any other case. But a presumption of 
law relates to whole categories of cases, to each one of which 
it is uniformly applicable, in anticipation of the facts devel- 
oped on trial. Thus, it is a presumption of law that all per- 
sons are sane; and this presumption applies in advance, be- 
fore any special facts are known to us, to all persons. But 
whether the defense of insanity is made out as to any par- 
ticular person is an inference of fact, which we cannot safely 
determine until we have heard all the evidence admitted as 
bearing on the issue. 

§ 715. Statute may declare that certain facts constitute 
presumptions of law. — Reference has been already made 

^United States v. Houghton, 14 Carter v. State, 20 Tex. 339; Ivey 

Fed. 544; Com. v. Emmons, 98 v. State, 43 Tex. 425; IViUiams v. 

Mass. 6; State v. Berhman, 3 Hill, State, 23 Tex. App. 70, 3 S. W. 661. 
L. 90; State v. Pitts. 13 Rich. L. 27; 



§ 715a] PRESUMPTIONS. 1455 

to the circumstance that the lawmaking power may attach to 
any particular fact or chain of facts certain legal consequences, 
and in this way turn a presumption of fact into a presumption 
of law. We may again recall, as illustrating this, the old Eng- 
lish statutes by which it was provided that concealment by a 
mother of the death of her bastard child is deemed proof that 
she was concerned in producing its unlawful death. By stat- 
utes, also, now existing in several states, it is prescribed that 
a person who has been absent without being heard from for a 
given period shall be presumed to be dead. And as an illustra- 
tion of the converse process, by which presumptions of fact 
are, by the lawmaking power, canceled, may be mentioned 
the legislation by which, in most of our states, the logical pre- 
sumption of guilt arising from silence when accused is ex- 
cluded from cases on trial, where a defendant declines to 
testify in his own behalf. 

§ 715a. Statutory presumptions; constitutionality. — As 
we have seen in another work, statutes have been adopted pro- 
viding that certain proof, admissible at common law, shall 
be excluded, as is the case with the statute of frauds and with 
stamp acts, and that certain proof, inadmissible at common 
law, shall be received, e. g., certified copies, and books sanc- 
tioned by public authority.^ Under the same category fall 
statutes providing that certain facts stated by the plaintiff 
on record at the beginning of a case shall be presumed to be 
true, unless denied by the defendant in affidavit. Statutes of 
this class may operate in criminal, as well as in civil, issues. 
The courts, in a criminal case, would be bound to exclude evi- 
dence not proved in the way the legislature prescribes, and 
to admit evidence which the legislature declares admissible. 
As illustrations of the latter class may be mentioned deposi- 
tions and copies of public documents which, though inadmis- 

1 Sec Wharton, Ev. § 1239a ; Wharton, American Law, § 494. 



1456 



EVIDENCE IN CRIMINAL CASES. [CHAP. XV. 



sible at common law, are made admissible by statute. Wheth- 
er statutes assigning prima facie force to certain proof are 
constitutional has been questioned. It has been held that a 
statute providing that drinking spirituous liquors at a place 
shall be prima facie proof that such liquors were sold by the 
occupant, with intent they should be drunk on the premises, 
is unconstitutional;^ and so of a statute declaring that no- 
toriety may be prima facie proof of liquor selling.' On the 
other hand, the constitutionality of a statute making delivery 
of liquor prima facie proof of selling has been affirmed ; * and 
so of a statute declaring sale is prima facie proof of illegality.' 
And there is no question that it is within the power of the 
legislature, at least as to future cases, to say that certain acts 
shall be penal unless innocence is affirmatively shown by the 
defendant, as is the case with statutes making concealment of 
the death of a bastard child proof of killing unless innocence 
is shown by the defense. The same rule is applied to statutes 
making it an indictable offense to carry concealed weapons, 
and to statutes throwing the burden of exculpation on persons 
keeping a house where it is reported spirituous liquors are 
sold.® These statutes are virtually statutes determining jues- 
tions of evidence. If constitutional, they cannot becortic un- 
constitutional, when they are put in the shape of rules of 
evidence.' 



^People V. Lyon. 27 Hun, ISO, 
s. c. 1 N. Y. Crim. Rep. 400. 

^ State V. Beswick, 13 R. I. 211, 
43 Am. Rep. 26. 

* Com. V. Wallace, 7 Gray, 222. 
See State v. Higgins, 13 R. I. 330. 

5 State V. Mellor, 13 R. I. 667. 

^ State V. Thomas, 47 Conn. 546, 
36 Am. Rep. 98. 

' See Wharton, Crim. Law, 8tli 
ed. § 1530; Com. v. Kelly, 10 Cush. 
69; State v. Beach, 147 Ind. 74, 36 



L.R.A. 179, 43 N. E. 949; Santo v. 
State, 2 Iowa, 165, 63 Am. Dec. 
487 ; Com. v. Smith, 166 Mass. 370. 
44 N. E. 503; State v. Altoffer, 2 
Ohio N. P. 97, 3 Ohio S. & C. P. 
Dec. 288; State v. Higgins, U R. I. 
330; State v. Beszvick, 13 R. I. 211, 
43 Am. Rep. 26; State v. Anderson. 
5 Wash. 350, 31 Pac. 969; State v. 
Wilson, 9 Wash. 218, 2>7 Pac. 424 ; 
State V. Kyle, 14 Wash. 550. 45 Pac. 
147; Com. v. Yee May, 166 Mass. 



§ 716] PRESUMPTIONS. 1457 

§ 716. Ambiguity of terms. — As is elsewhere more fully 
shown, much of the difficulty attending the consideration of 
this branch of evidence arises from the ambiguity of the terms 
employed.^ It is a "presumption of law,'* so we are told, that 
the sun will rise to-morrow; and this is true, if by "law" 
we mean "physical law." It is a "presumption of law," we are 
also told, that flight is prompted by fear; and this also is true, 
if we mean by "law" "psychological law." The mistake is 
that in one premise the term "law" is used in the sense of 
"physical" or "psychological law," and in the other premise 
in the sense of juridical law, and thus an erroneous conclusion 
is reached.'' "All presumptions of law," it is argued, "bind 
juries; that concealment argues consciousness of guilt is a 
presumption of law; therefore juries are bound to find that 
if there is concealment, there is guilt." The fallacy here is 
the use in one premise of the word "law" in the sense of ju- 
ridical law, and in the other premise in the sense of psycho- 
logical law. Again, to take an illustration to be hereafter 
more fully expanded, we presume, as a mere matter of logical 
inference, that intelligent persons intend what they do. This, 
we may say, is in obedience to a "law;" and this is true if by 
"law" we mean "psychological law." But the proposition is 
untrue if by "law" we mean "juridical law," since there are 
multitudes of cases in which intelligent persons do things un- 
intentionally-^ 

2>76, 44 N. E. 1120. See People v. ways been observed with the requi- 

Bamn, 133 App. Div. 481, 118 N. Y. site precision. We find the same 

Supp. 3. presumption spoken of by judges, 

1 Wharton, Ev. § 239. sometimes as a presumption of law, 

2 See Gordon v. People, 33 N. Y.' sometimes as a presumption of 
501 ; supra, § 341. fact, sometimes as a presumption 

3 Best, Ev. §§ 322, 323. which juries should be advised to 
"Unfortunately, however," says make, sometimes as one which it 

Mr. Best (Ev. § 323), "the line of was obligatory on them to make," 

demarcation between the different etc., citing Phill. & Am. Ev. 460. 

species of presumptions has not al- 461; 1 Phillipps, Ev. 10th ed. 470. 
Crim. Ev. Vol. II.— 92. 



1458 EVIDENCE IN CRIMINAL CASES. [CHAP. XV. 

II. Psychological Presumptions. 

§ 717. Motives. — Psychological presumptions are those 
which relate to the character and motives of men. They may 
be grouped in two general classes : ( 1 ) Those of law, which 
the policy of the law attaches to all men generically. (2) 
Those of fact, which our knowledge of human nature leads 
us to draw from a particular range of facts produced in a 
specific case. These presumptions will now be considered 
in order. 

§ 718. Presumption of innocence. — Every man is pre- 
sumed to be innocent until the contrary be proved, and if there 
be a reasonable doubt as to his guilt, the jury are to give him 
the benefit of such doubt.* This is a presumption of law 
(prcrsumptio juris), which the law makes arbitrarily in all 
cases, but which, unlike the prccsumptiones juris et de jure, 
may be rebutted by evidence. Between civil and criminal 
cases, there is in this respect an important distinction ; in the 
former, the jury weigh the testimony, and, after striking a 
fair balance, decide accordingly; but in criminal cases, as we 

"When such language," says Mr. sion of the stolen property has been 

Best, "is found in the judgments traced to the accused, their discre- 

of the superior courts, it is not tionary functions are at an end. 

surprising that the proceedings of Our ablest judges tell juries in such 

inferior ones should exhibit even cases that they ought, as men of 

greater inaccuracy and confusion. common sense, to make the pre- 

Nothing, for instance, is more com- sumption, and act upon it, unless 

mon than to hear a jury told from it be rebutted, either by the facts 

the bench, that when stolen prop- as they appear in the evidence for 

erty is found in the possession of the prosecution, or by the evidence- 

a party shortly after a theft, the or explanation of the accused." 

law presumes him to be the thief, — ^ See supra, §§ 1-15. 

a direction both wrong and mis- As to presumption of innocence 

chievous, as calculated to convey in habeas corpus proceedings, sec 

to the minds of the jury the false note in 22 L.R.A. 678. 
impression that when the posses- 



§§ 719, 719a] PRESUMPTIONS. 1459 

have had occasion to exhibit more fully in a prior chapter,^ 
the testimony, in order to sustain a conviction, must be such 
as to satisfy the jury beyond a reasonable doubt that the pris- 
oner is guilty of the charge alleged against him in the indict- 
ment.' 

But the presumption of innocence and proof of guilt must 
always be kept separate and distinct. The presumption of 
innocence is a conclusion of law in favor of the accused, 
whereby his innocence is not only established, but continues 
until sufficient evidence is introduced to overcome the proof 
which the law has created, namely, his innocence. 

When a doubt is created, it is the result of proof, and not 
the proof itself. Therefore the accused is entitled to instruc- 
tions upon the two points, first, the presumption of innocence, 
and, second, upon what constitutes a reasonable doubt; and 
one does not supply the place of the other.* 

§ 719. Confession and avoidance. — A difficult question 
arises when the case of the prosecution is made out beyond a 
reasonable doubt, and the defendant sets up matter of confes- 
sion and avoidance. If there be a reasonable doubt as to the 
defense thus set up, is there to be an acquittal? Or must the 
defense, to avail, be sustained by a preponderance of proof? 
This topic is noticed in another chapter,^ to which reference 
is now made.^ 

§ 719a. Presumptions o£ innocence not applicable to 
civil actions. — The rule, it is to be remembered, so far as 
it requires guilt to be made out beyond a reasonable doubt, 

2 Supra, § 1. Rep. 394, 162 U. S. 664, 40 L. ed. 

3 See supra, § 319. See also su- 1109, 16 Sup. Ct. Rep. 943; People 
pra, § 324; Slocum v. People, 90 v. Macard, 73 Mich. 15, 40 N. W. 
III. 274; supra, § 329. See Feigel 784. 

V. State, 85 Ind. 580. l Supra, § 329-340. 

'^Coffin V. United States. 156 U. ^ Moody v. State, 17 Ohio St. 110. 

S. 432, 39 L. ed. 481, 15 Sup. Ct. 



1460 EVIDENCE IN CRIMINAL CASES. [CHAP. XV. 

is limited to the single issue of guilt when charged in a crim- 
inal trial. It does not obtain in civil issues, in which a party, 
the object being to obtain redress in the way of damages, may 
be found responsible for heinous crimes on a bare preponder- 
ance of proof.^ Nor does the rule apply to cases in which 
charges of crime come up collaterally on a criminal trial. A 
defendant, for instance, may impute contributory negligence 
to the prosecutor; and so far from it being requisite to this 
defense for such contributory negligence to be made out be- 
yond a reasonable doubt, it will be sufficient if there be such 
a case of contributory negligence proved as will throw a rea- 
sonable doubt on the defendant's guilt. Or, on an indict- 
ment for homicide, the defendant sets up a killing by a third 
party. In this case, also, it is not necessary for the guilt of 
such third party to be made out beyond a reasonable doubt. 
It is sufficient if there is such proof presented as will throw a 
reasonable doubt on the defendant's guilt. 

§ 720. Measure of proof to overcome presumptions. — 
But when a defense in itself purely extrinsic and independent 
is set up, all the allegations of the indictment being admit- 
ted, then, as we have seen, it is necessary that the defense 
should be sustained by a preponderance of proof. The prin- 
cipal defenses of this class that have come before the courts 
are: 1, License, or authority from the state; 2, autrefois acquit 
or convict; and 3, insanity, when the object is to obtain a 
verdict of lunacy.^ On the other hand, when this defense 
traverses any essential allegation of the indictment, then, 
when the whole evidence is in, the jury, as we have seen, are 
to be told that to convict it is necessary that such allegation 
should be established beyond a reasonable doubt.* 

1 Wharton, Ev. § 1245. v. United States, 18 Wall. 516, 21 

1 See supra, §§ 331-340. L. ed. 908; Malier v. People, 10 

2 Supra, §§ 331-340. See Chaffee Mich. 212, 81 Am. Dec. 781. 



§§ 721, 722] PRESUMPTIONS. 1461 

§ 721. Major and minor offense. — When an offense 
charged in an indictment contains two degrees, malice being 
an ingredient of the major degree, but not of the minor, then, 
if the offense be proved to have been committed by the de- 
fendant, but there is a reasonable doubt as to the malice, the 
defendant is to be acquitted of the major offense, and may be 
convicted of the minor.^ If, in other words, on an indict- 
ment for an offense containing several grades, the jury have a 
reasonable doubt as to the higher grade, they must acquit of 
the higher grade; and if they have a reasonable doubt as to 
the lower grade, they must acquit of the lower grade. They 
can convict of no grade whatever, if they have a reasonable 
doubt as to the defendant's guilt of such grade.* 

§ 722. Inferences from facts. — No doubt it is sometimes 
said that from proof of a mere killing with a deadly instru- 
ment only murder in the second degree can be inferred.* 
But, as is elsewhere shown, no such case as that of "A killing 
B with a deadly weapon," viewing it simply in this meager 
outline, ever arose, or can arise, in a court of justice.* In the 
first place, we at least may know what kind of instrument was 

1 Supra, §§ 1, 334; Com. v. York, 47 Am. Dec. 93; State v. Holme, 
9 Met. 93, 43 Am. Dec. 373; Com. 54 Mo. 153; State v. Gassert, 65 
V. Drum, 58 Pa. 9; Staup v. Com. Mo. 352; State v. Evans, 65 Mo. 
74 Pa. 458; O'Mara v. Com. 75 Pa. 574; State v. Hill, 69 Mo. 451 ; State 
424; State v. Anderson, Houst. v. Brown, 7 Or. 186; Hamby v. 
Crim. Rep. (Del.) 38; State v. Tur- State, 36 Tex. 523; People v. Mil- 
ner, Wright (Ohio) 29; Hill v. gate, 5 Cal. 127; Coffee v. State, 3 
Com. 2 Gratt. 594; Willis v. Com. Yerg. 283, 24 Am. Dec. 570. See 
32 Gratt. 929; State v. Walters, 45 Dove v. State, 3 Heisk. 348; Whar- 
lowa, 389 ; 5'/a/^ V. Lo/ty^r, 4 Minn. ton, Homicide, §§ 34, 194; Whar- 
368, Gil. 277; Milton v. State, 6 ton, Crim. Law, 8th ed. § 392. 
Neb. 136; Mitchell v. State, 5 Yerg. 2 See supra, § 1. 
340; Witt V. State. 6 Coldw. 5; ^ Post, § 764. See State v. Gas- 
State V. Hildreth, 31 N. C. (9 Ired. sert, 65 Mo. 352; State v. Evans, 
L.) 429; Davis v. State, 10 Ga. 101; 65 Mo. 574. 
Daniel v. State, 8 Smedes & M. 401, * See supra, §§ 11-29; post, § 738. 



1462 EVIDENCE IN CRIMINAL CASES. [CHAP. XV. 

used. Was it poison? Undoubtedly, if the poisoning were 
malicious, we cannot withdraw the case from the category 
of murder in the first degree. But are not poisonous drugs 
frequently administered without malicious intent? Are not 
most medicines more or less poisonous? Hence, if we say, 
"Whoever deliberately administers poison acts maliciously," 
we state an untruth. If we say, "Whoever maliciously ad- 
ministers poison acts maliciously," this is a petitio principii. 
But in practical jurisprudence we are presented with no such 
alternative. We generally know what kind of poison is ad- 
ministered. We almost always know whether it was adminis- 
tered openly or stealthily; and there is no case that comes up 
for trial in which there is not a group of other circumstances 
each adding a new qualifying power to the reasoning by which 
the case is to be ruled. So it is with all other modes of kill- 
ing; and hence we must conclude that the question whether an 
abstract killing with a deadly weapon is murder in the first 
or murder in the second degree is one which does not belong 
to practical jurisprudence, and the presentation of which to a 
jury can only mislead. No case can arise in which there is 
not some distinctive incident capable of either strengthening or 
weakening the proof of malicious intent. When facts exist 
which are consistent only with the hypothesis of murder in 
the first degree, then murder in the first degree is to be in- 
ferred. When facts exist which are consistent only with the 
hypothesis of murder in the second degree, then murder in the 
second degree is to be inferred. And this is entirely consist- 
ent with the proposition just stated ; and when there are doubts 
as to whether a case falls within a higher or a lower grade, 
the jury as a matter of law are to incline to the merciful side, 
and find for the lower sfrade.^ 



3 Supra, § 721. See Wharton. Wingo, 66 Mo. 181, 27 Am. Rep. 
Critn. Law, 8th ed. § 392; State v. 329; post, §§ 734-737, 764. 



§ 723] 



PRESUMPTIONS. 



1463 



§ 723. All persons presumed to know the law. — That 
knowledge of the law on the part of all persons charged with 
crime is so far presumed that they cannot set up ignorance of 
the law as a defense is an axiom of jurisprudence.^ That the 
axiom contains an untruth is conceded. No man, in any com- 
munity, knows the law either intensively or extensively; there 
is no thinker, no matter how profound, who has not left some 
depths unfathomed; no reader, no matter how omnivorous, 
who has not left some details untouched. To predicate that 
of the ignorant which cannot be predicated of the learned 
specialist is absurd ; ^ but predicated it is both of ignorant and 
learned, so far as to establish the conclusion that no one is 
allowed to set up ignorance of law as an excuse for wrong.' 
Were it otherwise, government would be trampled under foot. 
All that would be necessary to secure perfect irresponsibility 
would be to lapse into perfect ignorance. The more brutal 
becomes the criminal, the more completely will he be relieved 
from punishment for crime. 



^ Wharton, Crim. Law, 8th ed. 
§ 84; 1 Hale, P. C. 42; Reg. v. 
Price, 3 Perry & D. 421, s. c. 11 
Ad. & El. 727, 9 L. J. Mag. Cas. 
N. S. 49, 4 Jur. 291 ; Middleton v. 
Croft, 2 Strange, rOS6, 2 Atk. 650, 
Cas. L Hardw. 57, 2 Barn. K. B. 
351, 2 J. Kelynge, 148; Rex v. Esop. 
7 Car. & P. 456; Reg. v. Good, 1 
Car. & K. 185 ; Stokes v. Salomons, 
9 Hare, 79, 20 L. J. Ch. N. S. 343, 
15 Jur. 483 ; Reg. v. Hoatson, 2 Car. 
& K. 777; Rex v. Bailey, Russ. & 
R. C. C. 1 ; Stockdale v. Hansard, 
9 Ad. & El. 131, 2 Perry & D. 1, 8 
L. J. Q. B. N. S. 294, 3 Jur. 905; 
Re Barronet, 1 El. & Bl. 1, Dears. 
C. C. 51, 22 L. J. Mag. Cas. N. S. 
25, 17 Jur. 184. 1 Week. Rep. 6: 
United States v. Learned, 1 Abb. 
<U. S.) 483, Fed. Cas. No. 15,580; 



The Ann, 1 Gall. 62, Fed. Cas. No. 
397; United States v. Anthony, 11 
Blatchf. 200, Fed. Cas. No. 200: 
Cambioso v. Maffet, 2 Wash. C. C. 
98, Fed. Cas. No. 2,330; Com. v. 
Bagley, 7 Pick. 279; Hamilton v. 
People, 57 Barb. 625 ; State v. Hart, 
51 N. C. (6 Jones, L.) 389; Mc- 
Guire v. State, 7 Humph. 54 ; Wine- 
hart V. State, 6 Ind. 30; Black v. 
Ward, 27 Mich. 191, 15 Am. Rep. 
162; Whitton V. State, 37 Miss. 379; 
Chaplin v. State, 7 Tex. App. 87. 

2 .See Martindale v. Falkncr, 2 C. 

B. 720, 2 Dowl. & L. 600. 15 L. J. 

C. P. N. S. 91, 10 Jur. 161 ; Reg. v. 
Tewkesbury, L. R. 3 Q. B. 629; 
Cutter v. State, 36 N. J. L. 125. 
Wharton, Ev. § 1029. 

3 Wharton, Crim. Law, 8th ed. 
§86. 



1464 EVIDENCE IN CRIMINAL CASES. [CHAP. XV. 

§ 724. Knowledge admissible to prove intent. — The 
knowledge of law, however, which is here assumed, is prac- 
tical knowledge, commensurate with the duties whose nondis- 
charge the law, in the concrete case, condemns. A sane per- 
son who commits a wrong, for instance, is bound to know 
that the wrong is subject to penal consequences; if it is malum 
in se, his natural consciousness points to this, and it would 
be fatal to government to allow want of such natural con- 
sciousness to be a defense; if it is malum prohibitum, it should 
be known by him, for it is his duty, when he undertakes to 
abide in a community, to know what it prohibits, for otherwise 
no police laws could be enforced. It is different when we 
undertake to determine the motives impelling a party to an 
illegal act. Hence, ignorance of law may be proved, when, 
on indictments for malicious offenses, such ignorance goes to 
negative malice,^ as where a police officer honestly mistaking 
the law under which he acts, intentionally, but without warrant 
or authority, kills an escaped convict, in which case there could 
be a conviction for manslaughter, but not for murder. To 
larceny, also, it may be a defense that the defendant acted 
under an honest, though erroneous, belief that he had title.^ 
But except in such cases, when the object is to determine the 
particular intent of the defendant when doing the act charged, 
ignorance of the law is no excuse. And even in cases of this 
class, the defendant, when the indictment permits it, may be 
convicted of a minor grade of the offense of which negligence 
is the gravamen. He ought to have known better, and though 
he cannot, to recur to homicide as an illustration, be convicted 
of murder, he may, on account of his negligence, be convicted 
of manslaughter,^ 

1 See Reg. v. Reed, Car. & M. ^ Wharton, Crim. Law, 8th ed. 
306; Wharton, Crim. Law, 8th ed. §§ 329, et seq. 

§ 85a. 

2 Wharton, Crim. Law, 8th ed. 
§84a 



§ 725] PRESUMPTIONS. 1465 

§ 725. Knowledge of facts a presumption of fact. — 
That a person knows what he does is also sometimes called 
a presumption of law. If we take presumption of law to mean 
something that the law declares to be universally true until 
rebutted, then it is not a presumption of law that all persons 
know what they are about; for there are many persons (e. g., 
persons influenced by fraud or imposition) of whom the law 
declares just the contrary. But that a person who is capax 
negotii should set up ignorance of fact as ground of exculpa- 
tion or of defense would be against the policy of the law; 
and hence, where there is no fraud or imposition, the law 
treats him as if he were cognizant of what he did. He is not 
supposed to have known facts of which it appears he was ig- 
norant; but if his ignorance is negligent or culpable, or if the 
offense is one made by statute indictable irrespective of the 
perpetrator's intention at the time, then his ignorance is no 
defense. Hence, ignorance of fact, while it may be admissible 
to disprove malice {e. g., when a person assaults another, er- 
roneously believing the latter to be a burglar),^ is not a de- 
fense to an indictment under a statute making the person do- 
ing a particular act indictable irrespective of his intention;'' 

1 Levett's Case, Cro. Car. 538 ; Eng. Rul. Cas. 60 ; Reg. v. Smith, 

Reg. V. Reed, Car. & M. 306; Reg. 42 L. T. N. S. 160, 14 Cox, C. C. 

V. Sleep, 8 Cox, C. C. 472, Leigh & 398, 44 J. P. 314; Reg. v. Prince, 

C. C. C. 44, 30 L. J. Mag. Cas. N. L. R. 2 C. C. 154, 44 L. J. Mag. 

S. 170, 7 Jur. N. S. 979, 4 L. T. Cas. N. S. 122, 32 L. T. N. S. 700, 

N. S. 525, 9 Week. Rep. 708; The 24 Week. Rep. 76, 13 Cox, C. C. 

Marianna Flora, 11 Wheat. 11, 6 L. 138, 1 Am. Crim. Rep. 1; Hudson 

ed. 407 ; Yates v. People, 32 N. Y. v. M'Rae, 4 Best & S. 585, 3i L. J. 

509; Logue v. Com. 38 Pa. 265, 80 Mag. Cas. N. S. 65, 9 L. T. N. S. 

Am. Dec. 481. See Wharton, Crim. 678, 12 Week. Rep. 80; United 

Law, 8th ed. § 88. States v. Leathers, 6 Sawy. 17, Fed. 

2Sedg\v. Stat. Law, 2d ed. p. 84; Cas. No. 15,581; Com. v. Mash, 7 

Reg. V. Gibbons, 12 Cox, C. C. 237; Met. 472; Com. v. Thompson, 11 

Reg. V. Hicklin, L. R. 3 Q. B. 360, Allen, 23, 87 Am. Dec. 685 ; Com. 

2)7 L. J. Mag. Cas. N. S. 89, 18 L. v. Emmons, 98 Mass. 6; Smith v. 

T. N. S. 395, 16 Week. Rep. 801, 8 Browtt, 1 Wend. 231 ; People v 



1466 



EVIDENCE IN CRIMINAL CASES. [CHAP. XV 



or to an indictment for misconduct, when the fact of which 
the party charged was ignorant vvas one which he ought to 
have known.^ 

§ 726. Presumption against suicide. — AH other things 
being equal, we are to presume, when a person is found dead, 
that he did not die by his own hand.^ Yet this presumption 
yields at once to any inferences to be drawn from the facts 
of the particular case.^ 

§ 727. Presumption of good faith in business relations. 
— Good faith in business has been frequently declared to 
be a rebuttable presumption of law. This postulate, however, 
must be regarded as an assumption merely for the determina- 
tion of the burden of proof. In criminal issues, when bad 
faith is one of the ingredients of the offense, it must be proved 
beyond a reasonable doubt.^ 



Brooks, 1 Denio, 457, 43 Am. Dec. 
704; Morris v. People, 3 Denio, 
381; Halstcd v. State. 41 N. J. L. 
552, 32 Am. Rep. 247, s. c. 39 N. 
J. L. 402; State v. King, 86 N. C. 
603; State v. Hartfiel, 24 Wis. 60; 
Wharton, Crim. Law, 8th ed. § 88. 
^Reg. V. Robins, 1 Car. & K. 456: 
Reg. V. Woodrow, 15 Mees. & W. 
404, 2 New Sess. Cas. 346, 16 L. J. 
Mag. Cas. N. S. 122 ; Reg. v. OUner, 
10 Cox, C. C. 402; Com. v. Farren. 
9 Allen, 489; Com. v. Viall, 2 Allen, 
512; Com. v. Nichols, 10 Allen, 199: 
Com. V. Waite, 11 Allen, 264, 87 
Am. Dec. 711; Com. v. Raymond, 
97 Mass. 567; Com. v. Smith, 103 
Mass. 444; Com. v. Wentworth, 113 
Mass. 441 ; State v. Smith, 10 R. I. 
258; Barnes v. State, 19 Conn. 398: 
People V. Zeiger, 6 Park. Crim. 
Rep. 388; People v. Reed.. 47 Barb. 



235; State v. Ruhl, 8 Iowa. 444; 
State V. Hanse, 71 N. C. 518. See 
Wharton, Crim. Law, 8th ed. § 88. 

1 Morrison v. New York C. &• H. 
R. R. Co. 63 N. Y. 643 ; Continental 
Ins. Co. V. Dclpcuch, 82 Pa. 225. 
See Way v. Illinois C. R. Co. 40 
Iowa, 341 ; Guardian Miit. L. Ins. 
Co. V. Hogan, 80 111. 35, 22 Am. 
Rep. 180. 

For presumption as to suicide, 
see also 35 L.R.A. 263. 

2 See Best, Ev. §§ 346, 347 ; Weed 
V. Mutual Ben. L. Ins. Co. 70 N. Y. 
561 ; Greenwood v. Lowe, 7 La. 
Ann. 197; Richards v. Kountze, 4 
Neb. 200; Binnpus v. Fisher, 21 
Tex. 571 ; supra, §§ 1, et seq. ; post. 
§§ 795, 796; 1 Crim. L. Mag. 25, 26. 

1 Supra, § 330. See supra, §§ 55- 
57. 



§§ 728, 729] PRESUMPTIONS. 1467 

§ 728. Presumptions applied to documents. — It has 
been sometimes said that when a document is shown to be 
genuine, the law presumes that it is true. But genuineness and 
truthfulness are so far from being convertible, that documents 
prepared to affect any political, social, or ecclesiastical end 
are from their nature ex parte, and are only to be received 
subject to such qualifications as may be supplied by a knowl- 
edge of the character and aims of their authors. It is true 
that if we could conceive of an ideal genuine document with- 
out any distinctive differentia of its own, we might speak of 
an ideal presumption of law that such a document is true. 
But there is no ideal genuine document; as soon as genuine- 
ness is established, it brings with it a series of incidents pe- 
culiar to itself, by which the inference of veracity is molded. 
The documents, for instance, that may be published with re- 
gard to the homicide of one of the parties to a contested elec- 
tion may be all genuine, but we cannot determine as to the 
truth of any one of them without first taking into account the 
prejudices of its author, and the objects he may have had in 
view in making the publication, and then proceeding to com- 
pare it with whatever other relevant evidence we can collect. 
The Roman authorities on this point speak unhesitatingly. 
Truth and genuineness, they insist, are not equivalent, though 
genuineness or falsification affords inferences of truth or 
falsehood. But this conclusion is a prcesiiuiptio hominis, or 
logical conclusion, as distinguished from a prccsuniptio legis, 
or arbitrary legal conclusion.^ 

§ 729. Presumption of sanity. — All persons who have 
reached years of discretion are regarded prima facie, by a 
rebuttable presumption of law {prcesumptio juris), to be sane.^ 

1 See Quinct. v. 5 ; L. 4 D. xxii. i Reg. v. Stokes, 3 Car. & K. 188 

4 ; L. 26, § 2, D. xvi. 3 ; Endemann, Reg. v. Taylor, 3 Cox, C. C. 84 

258; supra, §§ 546, et seq. ; Paley's Reg. v. Layton, 4 Cox, C. C. 149 

Evidences, Introd. Chap. United States v. Lawrence, • 



1468 



EVIDENCE IN CRIMINAL CASES. [CHAP. XV. 



Hence, the burden of proof, when a party sets up insanity as a 
defense, is on him to prove it.^ In what way this burden is 
to be sustained is elsewhere discussed.' 

As a result of the presumption of sanity in criminal cases, 
it is not incumbent on the state to produce affirmative evi- 
dence that sanity exists,* and in its practical application the 
party setting up insanity must produce affirmative evidence 
of insanity.* As a part of the presumption, where it is shown 
that the accused had lucid intervals, the presumption prevails 
that the criminal offense was committed during such an in- 
terval.^ But the legal presumption of sanity in one accused 
of crime cannot prevail to support a conviction where, upon 
the whole evidence, there is a reasonable doubt as to the men- 



Cranch, C. C. 514, Fed. Cas. No. 
15,576 ; United States v. McGlue, 1 
Curt. C. C. 1, Fed. Cas. No. 15,679; 
State V. Lazvrence, 57 Me. 574; 
Com. V. Eddy, 7 Gray, 583 ; State 
V. Spencer, 21 N. J. L. 196; Lynch 
V. Com. 77 Pa. 205, 1 Am. Crim. 
Rep. 283; Boswell v. Com. 20 
Gratt. 860 ; State v. Brandon, 53 N. 
C. (8 Jones, L.) 463; Weed v. Mu- 
tual Ben. L. Ins. Co. 70 N. Y. 566 
State V. Stark, 1 Strobh. L. 479 
Loeffner v. State, 10 Ohio St. 599 
People V. Myers, 20 Cal. 518. See 
supra, § 336. 

For notes as to presumption of 
sanity of accused, see 36 L.R.A. 722, 
727, and 24 L.R.A.(N.S.) 545. 

2 See supra, § Z2>6. 

3 Ibid. 

* Walter v. People, 32 N. Y. 147 ; 
Ferris v. People, 31 How. Pr. 140; 
United States v. Lawrence, 4 
Cranch, C. C. 514, Fed. Cas. No. 
15,576. 

5 State V. Jones, 64 Iowa, 349, 17 
N. W. 911, 20 N. W. 470; Sanders 



V. State, 94 Ind. 147; Duthey v. 
State, 131 Wis. 178. 10 L.R.A. 
(N.S.) 1032, 111 N. W. 222; State 
V. Jack, 4 Penn. (Del.) 470, 58 Atl. 
833; Johnson v. State, 57 Fla. 18, 
49 So. 40; State v. Wetter, 11 Idaho, 
433, 83 Pac. 341 ; State v. Mitchell, 
130 Iowa, 697, 107 N. W. 804 ; State 
V. Barker, 216 Mo. 532, 115 S. W. 
1102; Thomas v. State, 55 Tex. 
Crim. Rep. 293, 116 S. W. 600; 
State V. Brown, 36 Utah, 46, 24 
L.R.A.(N.S.) 545, 102 Pac. 641. 

^Ford V. State, 71 Ala. 385; 
Leache v. State, 22 Tex. App. 279, 
58 Am. Rep. 638, 3 S. W. 539; 
M'Naghten's Case, 10 Clark & F. 
200, 8 Scott, N. R. 595, 1 Car. & 
K. 130. But see Ford v. State, 73 
Miss. 734, 35 L.R.A. 117, 19 So. 665. 
See Marshall v. Territory, 2 Okla. 
Crim. Rep. 136, 101 Pac. 139; State 
V. Scott, 49 La. Ann. 253, 36 L.R.A. 
721, 21 So. 271, 10 Am. Crim. Rep. 
585; Com. v. Palmer, 222 Pa. 299, 
19 L.R.A.(N.S.) 433. 128 Am. St 
Rep. 809, 71 Atl. 100. 



§ 730] 



PRESUMPTIONS. 



1469 



tal competency of the accused to distinguish between right and 
wrong, or to understand the nature of the act he is commit- 



ting. 



§ 730. Insanity presumed to continue. — It has frequent- 
ly been said to be a presumption of law that chronic insanity 
is continuous,^ but that such presumption does not exist as to 
fitful and exceptional attacks.^ This, however, is a mere 
petitio principii, it being tantamount to saying that chronic 
insanity is chronic, and transient insanity is transient. The 
presumption as to the continuance of insanity, such is the 
more correct statement, is one of fact, varying with the par- 
ticular case.^ And it resolves itself into the conclusion that 



''Davis V. United States, 160 U. 
S. 469, 40 L. ed. 499, 16 Sup. Ct 
Rep. 353 ; State v. Brown, 36 Utah, 
46, 24 L.R.A.(N.S.) 545, 102 Pac. 
641. 

1 Reg. V. Lay ton, 4 Cox, C. C. 
149; Reg. v. Stokes, 3 Car. & K. 
188; Cartwright v. Cartwright, 1 
Phillim. Eccl. Rep. 100; Atty. Gen. 
V. Panither, 3 Bro. Ch. 441; White 
V. Wilson, 13 Ves. Jr. 88; Prinsep 
V. Sombre, 10 Moore, P. C C. 232 ; 
Nichols V. Binns, 1 Swabey & T. 
243 ; Smith v. Tehbitt, L. R. 1 Prob. 
& Div. 398, 36 L. J. Prob. N. S. 97, 
16 L. T. N. S. 841, 16 Week. Rep. 
18; Hoge v. Fisher, Pet. C. C. 163, 
Fed. Cas. No. 6,585 ; Breed v. Pratt, 
18 Pick. 115; Hix v. Whittemorc, 
4 Met. 545 ; Sprague v. Duel, — 
Clarke, Ch. 90; Titlow v. Titlow, 
54 Pa. 216, 93 Am. Dec. 691 ; State 
V. Spencer, 21 N. J. L. 196; Carpen- 
ter V. Carpenter, 8 Bush, 283 ; Bal- 
lew V. Clark, 24 N. C. (2 Ired. L.) 
23; State v. Briny ea, 5 Ala. 244; 



Sa.ron v. Whittaker, 30 Ala. 237; 
Ripley v. Babcock, 13 Wis. 425; 
State V. Reddick, 7 Kan. 143. 

^Hall V. Warren, 9 Ves. Jr. 605, 
7 Revised Rep. 306; White v. Wil- 
son, 13 Ves. Jr. 87; Lewis v. Baird, 
3 McLean, 56, Fed. Cas. No. 8,316; 
Hi.v V. Whittemorc, 4 Met. 545; 
State V. Reddick, 7 Kan. 143 ; Peo- 
ple V. Francis, 38 Cal. 183. 

3 Reg. V. Stokes, 3 Car. & K. 188 ; 
Reg. V. Layton, 4 Cox, C. C. 149; 
Sutton V. Sadler, 3 C. B. N. S. 87, 
26 L. J. C. P. N. S. 284, 3 Jur. N. 
S. 1150, 5 Week. Rep. 88; Smith 
V. Tebbitt, L. R. 1 Prob. & Div. 434. 
36 L. J. Prob. N. S. 97, 16 L. T. 
N. S. 841, 16 Week. Rep. 18; An- 
derson V. Gill, 3 Macq. Sc. App. 
Cas. 197; Staples v. Wellington, 58 
Me. 453; State v. Spencer, 21 N. J. 
L. 196 ; State v. Stark, 1 Strofch. L, 
479; State v. Brinyea, 5 Ala. 244; 
People V. Smith, 57 Cal. 130. See 
State V. Vann, 82 N. C. 631 ; Ford 
V. State, 71 Ala. 385. 



1470 EVIDENCE IN CRIMINAL CASES. [CHAP. XV. 

when insanity of a permanent type is shown to have existed, 
without proof of recovery, the burden is on the party setting 
up sanity to prove it,* but that the mere fact that a party 
had years ago an attack of exceptional brain disease does not 
impose such a burden. 

Two presumptions apparently combine, first, when insanity 
has been once established, it is presumed to continue, because 
it is aided by a second presumption that a state or condition 
once established continues until the contrary is shown. In 
other words, the presumption of sanity continues until in- 
sanity is established; then the reverse presumption prevails 
until it is overcome by proof of sanity.^ 

§ 731. Insanity; how shown; inquisition. — An inquisition 
of lunacy is, as to strangers, at the most only prima facie 
proof of business incompetency,^ though it may conclude par- 
ties.^ Hearsay in the neighborhood is inadmissible to prove 
insanity.^ The issue of insanity is to be determined by the 

As to presumption of continu- 23 Ga. 267; Hopson v. Boyd, 6 B. 

ance of insanity, see also notes in Mon. 296; Den ex dem. Aber v. 

35 L.R.A. 117, and 36 L.R.A. 726. Clark, 10 N. J. L. 217, 18 Am. Dec. 

^ State V. M^ilner, 40 Wis. 304. 417; Slaughter v. Heath, 127 Ga. 

See supra, § 63. 747, 27 L.R.A. (N.S.) 1, 57 S. E. 

5 See Lilly v. Waggoner, 27 111. 69; Logan v. Vanarsdall, 27 Ky. L. 

395; Tifcomb v. Vantyle, 84 111. 371; Rep. 822, 86 S. W. 981 ; Seaborn v. 

Chicago West Div. R. Co. v. Mills. State, — Tex. Grim. Rep. — , 90 S. 

9\l\\.29; Greemvade \. Greenzvade, W. 649; People v. Carlin, 194 N. 

43 Md. 313; Pennell v. Cummings, Y. 448, 87 N. E. 805. 

75 Me. 163 ; Re Kehler, 86 C. C. A. It seems that in New York the 

245, 159 Fed. 55 ; McReynolds v. inquest is conclusive as to contracts. 

Smith, 172 Ind. 336, 86 N. E. 1009; but not as to crimes. See Schoeii- 

State ex rel. Thompson v. Snell, 46 berg v. Ulman, 51 Misc. 83, 99 N. 

Wash. 327, 9 L.R.A. (N.S). 1191, 89 Y. Supp. 650. 

Pac. 931. Also see O'Reilly v. Sweeney, 54 

1 See cases cited Wharton, Ev. Misc. 408, 105 N. Y. Supp. 1033. 

§ 1254; Naanes v. State, 143 Ind. ^Wright v. Doc, 7 Ad. & El. 313. 

299, 42 N. E. 609. 2 Nev. & P. 303, 7 L. J. Exch. N. 

2 Supra, § 599; Lucas v. Parsons, S. 340, 4 Bing, N. C. 489, 6 Scott, 



§ 732] 



PRESUMPTIONS. 



1471 



facts proved in the particular case, such as prior insane con- 
duct,* physical peculiarities, and hereditary tendency.^ In ar- 
riving at a conclusion, the opinions of persons who have ob- 
served the alleged lunatic, whether such persons be experts or 
nonexperts, are to be considered.® 

The burden of proof in such cases is more fully discussed 
in a prior chapter.' 

§ 732. Presumption of prudence in avoiding danger. — 

Another psychological law (in obedience to which it may be 
a prima facie inference that men will act) is that persons, 
when advised of danger, will take ordinary care for self-pres- 



58, 5 Clark & F. 670; Lancaster 
County Nat. Bank v. Moore, 78 Pa. 
407, 21 Am. Rep. 24, overruling 
Rogers v. Walker, 6 Pa. 371, 47 
Am. Dec. 470; Choice v. State, 31 
Ga. 424; supra, § 599; Com. v. 
Pomcroy, 117 Mass. 143; People v. 
Pico, 62 Cal. 50; State v. Hoyt, 
47 Conn. 518, 26 Am. Rep. 89; 
Parrish v. State, 139 Ala. 16, 36 So. 
1012; Choice v. State, 31 Ga. 424; 
Brinklcy v. State, 58 Ga. 296; 
Grubb V. State, 117 Ind. 277, 20 
N. E. 257, 725; State v. Lagoni, 30 
Mont. 472, 76 Pac. 1044; Ellis v. 
State, 33 Tex. Crim. Rep. 86, 24 S. 
W 894. 

See State v. Windsor, 5 Harr. 
(Del.) 512; Kidder v. Stevens, 60 
Cal. 414; Butler v. St. Louis L. Ins. 
Co. 45 Iowa, 93 ; McLane v. Elder. 
— Tex. Civ. App. — , 23 S. W. 757 ; 
Barnett v. State, — Ala. — , 39 So. 
778; State v. Charles, 124 La. 744, 
50 So. 699, 18 A. & E. Ann. Cas. 
934; State v. Pcnna, 35 Mont. 535, 
90 Pac. 787; Wilson v. Slate, 58 



Tex. Crim. Rep. 596, 127 S. W. 
548. 

4 United States v. Sharp, Pet. C. 
C. 118, Fed. Cas. No. 16,264; Lake 
V. People, 1 Park. Crim. Rep. 495; 
McLean v. State, 16 Ala. 672; Peo- 
ple V. March, 6 Cal. 543. 

5 Reg. V. Oxford, 9 Car. & P. 525 ; 
Smith V. Kramer, 1 Am. L. Reg. 
353; Baxter v. Abbott, 7 Gray, 71; 
Com. V. Andrews, cited in 1 Whar- 
ton & S. Med. Jur. 375. 

See State v. Christmas, 51 N. C- 
(6 Jones, L.) 471 ; Wharton, Crim. 
Law, 8th ed. §§ 64-65. 

^ Supra, §§ 417 et seq. ; Parrish 
V. State, 139 Ala. 16, 36 So. 1012; 
Cotn. V. Sturtivant, 117 Mass. 122, 
19 Am. Rep. 401 ; Braham v. State,. 
143 Ala. 28, 38 So. 919; Com. v. 
Fcncec, 226 Pa. 114, 75 Atl. 19; 
State V. Constantine, 48 Wash. 218,. 
93 Pac. 317; Duthey v. State, 131 
Wis. 178, 10 L.R.A.(N.S.) 1032, 
111 N. W. 222. 

■^ Supra, § 336. ; 



1472 



EVIDENCE IN CRIMINAL CASES. [CHAP. W. 



ervation.^ This arises out of the well-known natural instinct 
of self-preservation, so that, in the absence of contrary evi- 
dence, the presumption is indulged that personal injuries were 
not self-inflicted,^ and that an injured person was in the ex- 
ercise of due care at the time of the injury.^ In some states 
no such presumption arises where direct testimony is avail- 
able,* but in the absence of such testimony the presumption 
will be indulged, at least to the extent of taking the case to 
the jury.^ Presumptions of this class are simply inferences 
of fact, varying in intensity with the capacity of the subject. 
To an infant, but a slight degree of prudence is imputed; the 
degree imputed increases with the years. ^ Prudence is taught 
by experience, direct or indirect, and we cannot impute impru- 



1 As to the relevancy of such evi- 
dence, see supra, § 56. 

2 Western Travelers' Acci. Asso. 
V. Holbrook, 65 Neb. 469, 91 N. W. 
276, 94 N. W. 816. 

^Baltimore & P. R. Co. v. Land- 
rigan, 191 U. S. 461, 474, 48 L. ed. 
262, 267, 24 Sup. Ct. Rep. 137; 
Hemingway v. Illinois C. R. Co. 52 
C. C. A. 477, 114 Fed. 843; Atchi- 
son, T. & S. F. R. Co. V. Aderhold, 
58 Kan. 293, 49 Pac. 83 ; Norton v. 
North Carolina R. Co. 122 N. C. 
910, 29 S. E. 886; Grant v. Baker, 
12 Or. 329, 7 Pac. 318. 

^Bell V. Clarion, 113 Iowa, 126, 
84 N. W. 962 ; Ames v. Waterloo & 
C. F. Rapid Transit Co. 120 Iowa, 
640, 95 N. W. 161. 

But see Schnee v. Dubuque, 122 
Iowa, 459, 98 N. W. 298. 

^ Bell V. Clarion, 113 Iowa, 126, 
84 N. W. 962; Golinvaux v. Bur- 
lington, C. R. & N. R. Co. 125 
Iowa, 652, 101 N. W. 465 ; Dalton v. 
Chicago, R. I. & P. R. Co. 104 
Iowa, 26, 7Z N. W. 349; Pennsyl- 



vania R. Co. V. Weber, 76 Pa. 157, 
18 Am. Rep. 407. 

But see Wilcox v. Rome, W. & 
O. R. Co. 39 N. Y. 358, 100 Am. 
Dec. 440. 

But the authorities are by no 
means uniform on the question, 
many holding directly that the pre- 
sumption will not be indulged, and 
that it does not arise from the in- 
stinct of self-preservation; but the 
greater weight is with the rule 
that, in the absence of direct evi- 
dence to the contrary, a presump- 
tion prevails in favor of prudence 
and care. But see Weiss v. 
Pennsylvania R. Co. 79 Pa. 387. 

8 Wharton, Neg. §§ 310, 315; 
George v. Los Angeles R. Co. 126 
Cal. 357, 46 L.R.A. 829, 77 Am. St. 
Rep. 184, 58 Pac. 819. 

See St. Louis South Western R, 
Co. V. Shiflet, 37 Tex. Civ. App. 
541, 84 S. W. 247; Over v. 
Missouri, K. & T. R. Co. — Tex. 
Civ. App. — , 73 S. W. 535; Nagle 
V. Allegheny Valley R. Co. 88 Pa. 



§ 733] 



PRESUMPTIONS. 



1473 



dence in avoiding danger except to those who know what 
danger is."' 



§ 733. Presumption of supremacy of husband. — Where 
both husband and wife are present and co-operate in a crim- 
inal act, it is a presumption of law, capable of being rebutted 
by proof however, that the wife is acting under the coercion 
of the husband.^ Formerly, the crimes of treason and homi- 



35, 32 Am. Rep. 413; Wilkinson v. 
Katiaivha Vv H. Coal & Coke Co. 
64 W. Va. 93, 20 L.R.A.(N.S.) 331, 
^1 S. E. 875; Cahill v. Stone, 153 
Cal. 571, 19 L.R.A.(N.S.) 1094, 96 
Pac. 84; Ewing v. Lanark Fuel Co. 
•65 W. Va. 726, 29 L.R.A.(N.S.) 
487, 65 S. E. 200. 

'See Bain, Character, § 282; 
Richardson V. Nelson, 221 111. 254, 
77 N. E. 583 ; Chicago & J. Electric 
R. Co. V. Freeman, 125 III. App. 
318; Cincinnatti, N. O. & T. P. R. 
Co. V. Sowders, — Ky. — , 119 S. 
W. 203; Tucker v. Buffalo Cotton 
Mills, 76 S. C. 539, 121 Am. St. 
Rep. 957, 57 S. E. 626. 

iSee 1 Hale, P. C. 45, 47; Reg. 
V. Manning, 2 Car. & K. 887; Reg. 
V. Smith, 8 Cox, C. C. 27; R. v. 
Stapleton, 1 Craw. & D. C. C. (Ir.) 
163 ; Reg. v. Matthews, 1 Den. C. C. 
596. Temple & M. 337, 14 Jur. 513, 
4 Cox, C. C. 214; Reg. v. Cohen, 
11 Cox, C. C. 99, 18 L. T. N. S. 
489, 16 Week. Rep. 941; State v. 
Cleaves, 59 Me. 298, 8 Am. Rep. 
422; State v. Harvey, 3 N. H. 65; 
State V. Potter, 42 Vt. 495; Com. 
V. Pratt, 126 Mass. 462; Com. v. 
Eagan, 103 Mass. 71; State v. 
Boyle, 13 R. I. 537; Goldstein v. 
, Crim. Ev. Vol. II.— 93. 



People, 82 N. Y. 231; Quinlan v. 
People, 6 Park. Crim. Rep. 9; Uhl 
V. Com. 6 Gratt. 711; Davis v. State, 

15 Ohio, 72, 45 Am. Dec. 559; Peo- 
ple V. Wright, 38 Mich. 744, 31 
Am. Rep. 331 ; Miller v. State, 25 
Wis. 384; State v. Parkerson, 1 
Strobh. L. 169; Williamson v. State, 

16 Ala. 431; Mulvey v. State, 43 
Ala. 316, 94 Am. Dec. 684; Rex v. 
Knight, 1 Car. & P. 116; Reg. v. 
Cruse, 2 Moody, C. C. 53, 8 Car. 
& P. 541 ; Hensley v. State, 52 Ala. 
10, 1 Am. Crim. Rep. 465; State v. 
Banks, 48 Ind. 197; Com. v. Neal, 
10 Mass. 152, 6 Am. Dec. 105 ; State 
V. Bcntz. 11 Mo. 27; State v. 
Haines, 35 N. H. 207; State v. 
Williams, 65 N. C. 398; State v. 
Boyle, 13 R. I. 537; State v. Potter, 
42 Vt. 495 ; Gill v. State, 39 W. Va. 
479, 26 L.R.A. 655, 45 Am. St. Rep. 
928, 20 S. E. 568; Miller v. State. 
25 Wis. 384; State v. Fitzgerald, 49 
Iowa, 260, 31 Am. Rep. 148, 3 Am. 
Crim. Rep. 1; State v. Kelly, 74 
Iowa, 589, 38 N. W. 503; Uhl v. 
Com. 6 Gratt. 706; Bibb v. State, 
94 Ala. 31, 33 Am. St. Rep. 88, 10 
So. 506; Com. v. Eagan, 103 Mass. 
71; Freel v. State, 21 Ark. 212; 
Edwards v. State, 27 Ark. 493. 



1474 



EVIDENCE IN CRIMINAL CASES. [CHAP. XV. 



cide were excepted,^ but this exception no longer prevails, and 
the presumption applies alike to felonies and misdemeanors.* 
The exceptions now apply only to those offenses which are 
more likely to be committed by women.* The presumption 
of coercion is not conclusive, but may be rebutted by proof 
that the wife acted of her own volition, or by proof showing 
her free concurrence in the act.* The presumption does not 
apply to acts done in the absence of the husband; ^ nor does it 
apply where the wife testifies in behalf of her husband, and 
commits perjury.'' 



2 Wharton, Crim. Law, 10th ed. 
§ 78. 

3 Reg. V. Smith, 8 Cox, C. C. 27 ; 
Reg. V. Wardroper, 8 Cox, C. C. 
284, Bell, C. C. 249, 29 L. J. Mag. 
Cas. N. S. 116, 6 Jur. N. S. 232, 
1 L. T. N. S. 416, 8 Week. Rep. 
217; Reg. v. Manning, 2 Car. & K. 
903 ; Com. v. Gannon, 97 Mass. 547 ; 
Com. V. Welch, 97 Mass. 593 ; State 
V. Williams, 65 N. C. 398; State v. 
Cleaves, 59 Me. 298, 8 Am. Rep. 
422; Com. v. Pratt, 126 Mass. 462; 
State V. Boyle, 13 R. I. 537. 

^Com. V. Cheney, 114 Mass. 281; 
State V. Williams, 65 N. C. 398; 
State V. Jones, 53 W. Va. 613, 45 S. 
E. 916. 

^Marshall v. Oakes, 51 Me. 308; 
Com. V. Gonnley, 133 Mass. 580; 
State V. Shee, 13 R. I. 535; Tablet 
V. State, 34 Ohio St. 127; United 
States V. Terry, 42 Fed. 317; Nolan 
V. Traber, 49 Md. 460, 33 Am. Rep. 
277; Carleton v. Haywood, 49 N. 
H. 314; Edzvards v. Wessinger, 65 
S. C. 161. 95 Am. St. Rep. 789, 43 
S. E. 518; Cassin v. Delany, 38 N. 
Y. 178. 

6 1 Hawk. P. C. chap. 1, § 9; 
1 Hale, P. C. 47; Martin v. Com. 



1 Mass. 347 ; Com. v. Neal, 10 Mass. 
152, 6 Am. Dec. 105; Com. v. 
Butler, 1 Allen, 4; Com. v. Munsey, 
112 Mass. 287; Com. v. Feeney, 
13 Allen, 560; State v. Shee, 13 R. 
I. 535; Com. v. Gormley, 133 Mass. 
580. 

"^ Com. V. Moore, 162 Mass. 441, 
38 N. E. 1120. 

It has been held in one case that 
the presumption of coercion does 
not now exist, placing it on the 
ground that when first adopted it 
met a condition of society which 
has now ceased. See State v. Hend- 
ricks, 32 Kan. 559, 4 Pac. 1050. 

It cannot be conclusively urged 
that the enlarged property and 
social rights of the wife rebut the 
presumption of coercion. The 
marital control is founded on nat- 
ural laws, and is as great to-day 
as when first applied as a limi- 
tation, and, as Mr. Blackstone cor- 
rectly says, a husband's coercion is 
"an excuse for criminal miscon- 
duct." This, then, places on the 
prosecution the duty of producing 
evidence of the wife's willing par- 
ticipation in the crime, as other- 
wise the presumption of coercion 



§ 734] PRESUMPTIONS. 1475 

§ 734. Presumption that probable consequences of an 
act are intended. — That a man intends the probable con- 
sequences of what he does is sometimes styled a presumption 
of law. This, however, is an error, if, by presumption of law, 
is meant a presumption to be imposed by the courts as univer- 
sally applicable. It is not universally true that a man intends 
the probable consequences of his act. A manufacturer of 
pistols, for instance, knows that it is probable that some of the 
pistols he makes may be used to kill ; but the killing that re- 
sults he does not, in the eye of the law, intend. Probable 
consequences, also, may result from acts as to which the law, 
by pronouncing them to be negligent, expressly negatives in- 
tent. We are unable, therefore, to say of all the probable con- 
sequences of acts that they were intended by the authors of 
such acts. All that we can say is that most of such probable 
consequences were intended ; and that, judging from analogy 
or imperfect induction,^ such is the case with the particular 
consequences we have to discuss. In this sense we may speak 
of such consequences as presumably intended.^ In all depart- 

prevails. See Com. v. Flaherty, 140 White, 23 Conn. 529; Quinehaug 

Mass. 454, 5 N. E. 258; Com. v. Bank v. Brezvstcr, 30 Conn. 559 

Hill, 145 Mass. 305, 14 N. E. 124; Thomas v. People, 67 N. Y. 218 

State V. Ma Foo, 110 Mo. 7, ZZ Am. People v. Majone, 1 N. Y. Crim 

St. Rep. 414, 19 S. W. 222 ; Gold- Rep. 86-94 ; Hackett v. Com. 15 Pa 

stein V. People, 82 N. Y. 231; 95; Jones v. Ricketts, 7 Md. 108; 

Franklin's Appeal, 115 Pa. 534, 2 State v. Robinson, 20 W. Va. 713, 

Am. St. Rep. 583, 6 Atl. 70; State 43 Am. Rep. 799; Ridenour v. State, 

V. Harvey, 130 Iowa, 394, 106 N. 38 Ohio St. 272; Hart v. Roper, 41 

W. 938; Com. v. Adams, 186 Mass. N. C. (6 Ired. Eq.) 349, 51 Am. 

101, 71 N. E. 78. Dec. 425 ; State v. Skidmore, 87 N. 

1 See supra, §§ 5-17. C. 509 ; Hayes v. State, 58 Ga. 35 ; 

2 Rex V. Brice, Russ. & R. C. C. Gauldin v. Shehee, 20 Ga. 531 ; 
450; Reg. v. Cobden, 3 Post. & F. Ware v. State, 67 Ga. 349; Phil- 
833; State v. Goodenozu, 65 Me. lips v. State, 68 Ala. 469; Burke v. 
30, 1 Am. Crim. Rep. 42; State v. State, 71 Ala. 377; Whizenant v. 
Gilman, 69 Me. 163, 31 Am. Rep. State, 71 Ala. 383; State v. Rede- 
257, 3 Am. Crim. Rep. 15; Com. v. meier, 8 Mo. App. 1, s. c. 71 Mo. 
McGorty, 114 Mass. 299; Knapp v. 173, 36 Am. Rep. 462; Mears v. 



1476 EVIDENCE IN CRIMINAL CASES. [CHAP. XV. 

nients of jurisprudence this line of reasoning is applied. We 
infer that he who breaks into a house at night and steals goods 
intends burglary,' and that he who publishes a libel does so 
intentionally, though such inferences are open to rebuttal.* 
We infer, in such and similar cases, intent; but we infer it 
(even when a party is examined as to his motives) from the 
facts of the particular case. The process is induction from 
facts, not deduction from arbitrary law.^ 

§ 735. Process is one of logic. — But. as has already been 
noticed, these inferences, though inferences of fact varying 
in intensity with each particular case (not prima facie in- 
variable, as is the presumption of innocence), are not infer- 
ences to be arbitrarily applied. The jury in such matters is 
to accept certain general principles of probable reasoning, 
which it is the duty of the court to announce, not as binding 
rules of law, but as logical processes, of great value in all 
questions of evidential induction.^ 

§ 736. Illustrations of rule. — The presumption (or in- 
ference, as it may more properly be called) immediately be- 
fore us, that the natural and probable consequences of every 
act deliberately done were intended by its author,^ may be 

Graham, 8 Blackf. 144; State v. Neely, 74 N. C. 425, 21 Am. Rep. 

Lautenschlagcr, 22 Minn. 514. See 496, 1 Am. Crim. Rep. 636; State v. 

filkins V. People, 69 N. Y. 101, 25 Donovan, 61 Iowa, 369, 16 N. W. 

Am. Rep. 143 ; 1 Stephens, Crim. 206. 
Law, 112. See supra, § 53; Trogdon v. Com. 

^Rex V. Brice, Russ. & R. C. C. 31 Gratt. 862. 
450. 1 See Fuhner v. Com. 97 Pa. 503 ; 

^Pontifex v. Bignold, 3 Mann. Farris v. Com. 14 Bush, 362; State 

& G. 63, 3 Scott, N. R. 390, 9 Dowl. v. Swayzc, 30 La. Ann. 1323; 

P. C. 860, 10 L. J. C. P. N. S. Brozvn v. State, 4 Tex. App. 275; 

259. Parrish v. State, 14 Neb. 60, 15 N. 

6 Beyer v. People, 86 N. Y. 369 ; W. 357. 
State V. Massey, 86 N. C. 658, 41 ^ Reg. v. Price,-9 Car. & P. 729; 

Am. Rep. 478, overruling State v. Rex v. Holt, 7 Car. & P. 518; Rex 



§ 736] PRESUMPTIONS. 1477 

copiously illustrated. Thus, on a trial for forgery, where the 
forgery is proved, an intent to defraud the person who would 
have to pay the instrument if it were genuine may be inferred", 
even though the instrument be so framed as not to impose 
upon him, and the intent to defraud be general, and not con- 
fined or in any way pointed to the person by whom, if genuine, 
the instrument would be paid.^ So, the uttering of a forged 
stock receipt to a person who employed the prisoner to pur- 
chase stock to that amount, and advanced the money, is the 
basis from which may be inferred an intent to defraud, not- 
withstanding the belief of the party to whom it was uttered 
that the prisoner had no such intent.' Where a killing, also, 
is by a person without authority, and not in public war, by 
an instrument likely to cause death, with deliberate aim, mal- 
ice is to be inferred from the act,* But the inference of in- 
tent or of malice is to be drawn from the whole case, varying 
in force as the case varies.^ It is wrong to say in cases of 
homicide, for instance, that, as a uniform presumption of 
law, criminal intent and malice are to be presumed from the 
use of a deadly weapon, for there are cases when this is not 

V. Dixon, 3 Maule & S. 15, 4 Campb. State, 11 Ga. 92; State v. Mix, 15 

12, 15 Revised Rep. 381; Rex v. Mo. 153. 

Bailey, Russ. & R. C. C. 1 ; Rex v. 3 j^^j^ y. Sheppard, Russ. & R. C. 

Harvey, 3 Dowl. & R. 464, 2 Barn. C. 169, 1 Leach, C. L. 226, 2 East, 

& C. 257, 2 L. J. K. B. 4, 26 Revised P. C. 967. 

Rep. 2>Z7 ; Com. v. Drew, 4 Mass. * See Reg. v. Ward, L. R. 1 C. C. 
391 ; Com. v. Snelling, 15 Pick. 337 ; 356, 41 L. J. Mag. Cas. N. S. 69, 
People V. Cotteral, 18 Johns. 115; 26 L. T. N. S. 43, 20 Week. Rep. 
State V. Cooper, 13 N. J. L. 361, 25 392, 12 Cox, C C. 123; Thomas v. 
Am. Dec. 490; State v. Mitchell, 27 People, 67 N. Y. 218; Meyers v. 
N. C. (5 Ired. L.) 350; State v. Com. 83 Pa. 131; State v. Zeibart, 
Jarrott, 23 N. C. (1 Ired. L.) 76; 40 Iowa, 169; State v. Lau ten- 
State V. Council, 1 Overt. 305. schlager, 22 Minn. 514. 

2 Wharton, Crim. Lew, 8th ed. 5;7j7^/„^ v. P^o/>/£', 69 N. Y. 101, 

§§ 717, et seq. ; Rex v. Mazagora, 25 Am. Rep. 143; State v. Painter, 

Russ. & R. C. C. 291; Henderson 67 Mo. 84. 
V. State, 14 Tex. 503; Hoskins v. 



1478 EVIDENCE IN CRIMINAL CASES. [CHAP. XV 

true.° Yet, in cases where the evidence shows the dehberate 
use by an intelhgent person of a deadly weapon, in a private 
encounter, without authority of law, the jury may be told 
that malice is a proper logical inference.' 

§ 737. Roman lav^^ to the same effect. — The Roman 
common law is to the same effect. Facta Iccsione prcosumitur 
dolus, donee probetur eontrarium. This is based partially 
on the Code and opinions of the jurists, partially on philosoph- 
ical grounds. But this is simply a "conclusio probationitm," 
or inference of probable inductive reasoning from facts. And 
with peculiar caution do the jurists insist upon the inference 
being drawn from all the circumstances of the case. It is. 
they tell us, a process of free logic, in which we are not justi- 
fied in arriving at an inference until we weigh every fact put 
in evidence, and as to which no preannounced inflexible rule 
can be declared.^ 

§ 738. Malice not to be arbitrarily presumed from kill- 
ing. — We must keep in mind that the doctrine that malice 
and intent are presumptions of law, to be presumed from the 
mere act of killing, belongs, even if correct, to purely specu- 
lative jurisprudence, and cannot be applied to any case that 
can possibly arise before the courts. As we have just seen, 
in no case can the prosecution limit its proof to the mere act 
of killing. If killing be proved, the mode must not merely 

«Post, § 764. 185, 3 Am. Crim. Rep. 180; Simp- 
See Reg. V. Welsh. 11 Cox, C. C. son v. State, 59 Ala. 1, 31 Am. Rep. 

336; Reg. v. Selten, 11 Cox, C. C. 1; State v. Swayse, 30 La. Ann. 

674; Murray v. Com. 79 Pa. 311; 1323; Palmare v. State, 29 Ark. 

Kingen v. State, 45 Ind. 519; Buck- 248; Skidmore v. State, 43 Tex. 93; 

ner v. Com. 14 Bush, 601; Farris Perry v. State, 44 Tex. 473; 

V. Com. 14 Bush, 362; State v. Murray v. State, 1 Tex. App. 417. 

Roane, 13 N. C. (2 Dev. L.) 58; 'Post, § 764. 

State V. West, 51 N. C. (6 Jones, i Collat. legg. Mos. et Rom. 1, 

L.) 506; State v. Coleman, 6 S. C. 8. 



§ 738] PRESUMPTIONS. 1479 

be shown, but averred. It is not enough to aver in the in- 
dictment that "A killed B." How the killing was done must 
be specified. Nor is it possible to eliminate from the proof 
the mode ; for a statement by a witness, could we imagine such 
evidence to be offered, that "A killed B," would be inadmis- 
sible as matter of opinion; it would be necessary to state the 
facts, so as to show that the way of killing was one of which 
the law takes cognizance. It may be said, for instance, that 
A, a son, killed his mother by his misconduct breaking her 
heart; but this would not be the subject of a criminal prose- 
cution. What the law punishes is not killing, but particular 
modes of killing, and those must be averred and proved. Now, 
these modes, when proved, form facts from which intent is 
to be inferred or negatived. It is therefore announcing a prop- 
osition purely speculative and irrelevant to tell a jury that an 
abstract killing involves, as a matter of law, an abstract in- 
tent. It is perfectly proper, however, to tell a jury that from 
certain circumstances — e. g., the use ©fa deadly weapon, re- 
peated and severe wounds, threats — intent and malice may be 
rightly inferred as inferences of fact.^ These are inferences 
familiar in the operation of psychological and social law^; 
inferences the jury are bound to weigh; but in weighing which 
it is proper that they should be advised by the court. When 
we apply this test, the apparent conflict of opinions vanishes. 
It is true that we hear occasional utterances, as in Massa- 
chusetts, of the old doctrine that malice is to be inferred from 
the mere act of killing; but wherever this is done, it is fol- 
lowed by the admission that when the facts of killing are 
proved, then the malice is to be inferred from the facts. Now, 
as the facts of killing are always proved, the idea of abstract 

1 See ^'/a/f V. GiVman, 69 Me. 163, Miss. 778; LaceMd v. State, 34 

31 Am. Rep. 257, 3 Am. Crim. Rep. Ark. 275, 36 Am. Rep. 8. 

15; Roach v. State, 8 Tex. App. As to presumption of malice from 

478; Brozvn v. State, 9 Neb. 157, 2 killing, see note in 4 L.R.A.(N.S,) 

N. W. 378; Hawthorne v. State, 58 934. 



1480 



EVIDENCE IN CRIMINAL CASES. [CHAP. X7. 



malice being presumed from abstract killing has no applica- 
tion to the cases before the court.^ It is a speculation like the 
speculations of the old schoolmen, from which it is taken, 
based on the supposition that there are abstract generic phe- 
nomena (e. g., an abstract horse with abstract predicates) ; 
speculations which roam over all creation, without ever touch- 
ing any particular real case. Should, however, the judge make 
the proposition not speculative, but regulative, — should he 
direct the jury that logical inferences of this class are pre- 
sumptions of law, and tell them to presume malice from the 
act of killing, — then this would be error,' 

§ 739. Nor from other hurtful act. — The fallacy which 
has just been noticed pervades the civil as well as the criminal 



2 See Com. v. Hawkins, 3 Gray, 
463; United States v. Armstrong, 
2 Curt. C. C. 446, Fed. Cas. No. 
14,467. 

3 Wharton, Crim. PI. & Pr. § 
794. 

See post, § 768; Reg. v. 
Labouchere, 14 Cox, C. C. 419 
(libel) ; Schull v. Hopkins, — S. 
D. — , 29 L.R.A.(N.S.) 691, 127 N. 
W. 550 (libel) ; Towney v. Simon- 
son, W. & H. Co. 109 Minn. 341, 
27 L.R.A.(N.S.) 1035, 124 N. W. 
229; Holmes v. Royal Fraternal 
Union, 222 Mo. 556, 26 L.R.A. 
(N.S.) 1080, 121 S. W. 100. 

The error of using an abstract 
fact as a presumption, as defined in 
the text, is also clearly shown in 
those statutes concerning homicide 
which provide in their general 
phraseology that, "the killing be- 
ing proved, the burden of proving 
circumstances of mitigation, or that 
justify or excuse the homicide, 
will devolve on the accused. In 



those courts, as in Colorado, where 
the court is permitted to give the 
statute itself as an instruction in 
criminal cases, the phrase above 
cited is given in nearly every trial 
for homicide. The error consists 
in the fact that where the accused 
sets up an alibi, or that the death 
was from an accident, the trial 
court gives as an abstract prop- 
osition the instruction that, the 
killing being proved, justification 
devolves on the accused. Now, as 
noted in the text, the fact of kill- 
ing is always proved, and on proof 
of that fact, without regard to the 
defense, the accused is burdened by 
an affirmative showing under such 
instruction. See Hill v. People, 1 
Colo. 451 ; Bab cock v. People, 13 
Colo. 523, 22 Pac. 817; Hopps v. 
People, 31 111. 392, 83 Am. Dec. 
231; Com. v. York, 9 Met. 93. 43 
Am. Dec. 373; Stokes v. People, 53 
N. Y. 177, 13 Am. Rep. 492; Ale.r- 
ander v. People, 96 111. %. 



§ 739] PRESUMPTIONS. 1481 

side of our law. Thus, we are told by an authoritative writ- 
er that "the deliberate publication of a calumny which the pub- 
lisher knows to be false raises, under the plea of 'not guilty* 
to an action for libel, a conclusive presumption of malice." ^ 
Now here, again, is either a mere petitio principii, being equiv- 
alent to saying, "a falsehood uttered deliberately and know- 
ingly is a falsehood uttered deliberately and knowingly," or we 
liave exhibited to us, not a "conclusive," but a probable, pre- 
sumption of malice. Undoubtedly, the fact that a document 
attacking the character of another is published by a mere vol- 
unteer is ground from which malice may be inferred. But 
this fact is not always enough to make out malice, for when 
the publication is privileged, then, in order to show malice, 
facts inconsistent with bona fides must be proved.^ Whether 
there is malice, therefore, even by force of the very line of 
cases before us, is a question of fact, determined by the evi- 
dence in the particular case. Another illustration of the same 
error may be noticed in an English ruling that fraud is to be 

1 Taylor, Ev. § 71, citing Haire Q. B. N. S. 313, 15 Jur. 746; Cooke 

V. JVilsoii, 9 Barn. & C. 643; Rex v. v. Wildes, 5 El. & Bl. 328, 3 C. L. R. 

Shipley, 4 Dougl. K. B. 73, 177; 1090, 24 L. J. Q. B. N. S. 367, 1 Jur. 

Fisher v. Clement, 10 Barn. & C. N. S. 610, 3 Week. Rep. 458; Too- 

475, 8 L. J. K. B. 176 ; Baylis v. good v. Spyring, 1 Cromp. M. & R. 

Lawrence, 11 Ad. & El. 925, 3 Perry 181, 193, 3 L. J. Exch. N. S. 347, 

& D. 526, 9 L. J. Q. B. N. S. 196. 4 Tyrw. 582, 9 Eng. Rul. Cas. 55; 

4 Jur. 652. Coxhead v. Richards, 2 C. B. 569, 

See Greenl. Ev. § 18. 15 L. J. C. P. N. S. 278, 10 Jur. 

^ Bromage v. Prosser, 4 Barn. & 984; Wright v. Woodgate,2 Cromp. 

C. 247, 6 Dowl. & R. 296, 1 Car. M. & R. 573, 1 Gale, 329, 1 Tyrw. 

& P. 475, 3 L. J. K. B. 203, 28 & G. 12 ; Gilpin v. Fowler, 9 Exch. 

Revised Rep. 241; Spill v. Maule, 615, 23 L. J. Exch. N. S. 152, 18 

L. R. 4 Exch. 232, 38 L. J. Exch. Jur. 292, 2 Week. Rep. 272 ; Somer- 

N. S. 138, 20 L. T. N. S. 675, 17 ville v. Hazvkins, 10 C. B. 583, 20 

Week. Rep. 805; White-Held v. L. J. C. P. N. S. 131, 15 Jur. 450; 

Southeastern R. Co. 1 El. Bl. & El. Harris v. Thompson, 13 C. B. 333 ; 

115, 27 L. J. Q. B. N. S. 229, 4 Jur. Reg. v. Wallace, 3 Ir. C. L. Rep. 

N. S. 688, 6 Week. Rep. 545 ; Taylor 38. 
V. Hawkins, 16 Q. B. 308, 20 L. J. 



1482 EVIDENCE IN CRIMINAL CASES. [CHAP. XV. 

inferred wherever one man tells an untruth to another for the 
purpose of obtaining the latter's goods.^ Here, again, we 
have the same dilemma. Either the ruling, if it means that 
he who intends to cheat has the intention of cheating, is a 
bare petitio principii, or it rests on a false premise, namely, 
that a man who, by means of an untruth, obtains another's 
goods, intends to cheat, in teeth of the fact that there are 
innumerable cases in which untruths are uttered unconscious- 
ly, or as mere brag, or as matters of opinion, in which cases 
it is held that the intention to cheat is not proved. In this case, 
also, we have the process of deduction erroneously substituted 
for induction, by which alone, as we have seen, conclusions 
as to intent can be reached. 

§ 740. Combination of intentions no defense. — When 

the proof indicates that there were other intentions beside that 
laid in the indictment {c. g., in stealing, beside the intention 
to steal, an intention to help a third person; or in homicide, 
beside the intent to kill, an intent to vindicate an impaired 
right), the existence of such cumulative intention is no de- 
fense.^ There is no good act that is not to some extent im- 
pelled by improper motives; there is no bad act which the 
perpetrator does not summon up good motives to excuse. An 
assassination, for instance, is rarely for the exclusive purpose 

^Tapp V. Lee, 3 Bos. & P. 371. Car. & P. 306; Reg. v. Bozven, 

See Pontifex v. Bignold, 3 Car. & M. 149; Reg. v. Hill. 2 

Mann. & G. 63, 3 Scott, N. R. 390, Moody, C. C. 30; Rex v. Batt, 6 

9 Dowl. P. C. 860, 10 L. J. C. P. Car. & P. 329, 4 Mor. Min. Rep. 

N. S. 259; Murphy v. Covi. 23 162; State v. Moore, 12 N. H. 42; 

Gratt. 960; Reg. v. Noon, 6 Cox, Com. v. M'Pike, 3 Cush. 181, SO 

C. C. 137. See State v. Williams, Am. Dec. 727; People v. Curling, 

69 Mo. 110. 1 Johns. 320; State v. King, 86 

^Rex V. Cox, Russ. & R. C. C. N. C. 603. 
362, 1 Leach, C. L. 71 ; Rex v. See supra, § 135 ; Wharton, 

Gillow, 1 Moody, C. C. 85. Crim. Law, 8th ed. § 119. 
1 Lewin, C. C. 57; Rex v. Davis, 1 



§ 741] PRESUMPTIONS. 1483 

of satiating private hate. A bad man is to be removed from 
the world, or some good deeds are to be aided by part of the 
plunder. If, whenever good intentions are mingled with the 
bad intention, there could be no conviction, there could be 
no conviction in any case.^ 

But where any act is as consistent with good intention as 
with bad intention, the finding of the court ought always to 
favor the honest intention.^ 

The law is, no matter what may be the motives leading to 
a particular act, if the act is illegal, it is indictable, notwith- 
standing that some one or more of the motives inducing the 
act may be meritorious.* 

§ 741. Presumptions arising from mutilation of docu- 
ments. — From the vexed question of intent we proceed to 
another line of rulings, as to which variable logical inferences 
have been too often spoken of as constant presumptions of 
law. Where a document is shown to have been fraudulently 
altered, defaced, or destroyed, we may infer that this was 
done in the interests of the party to be benefited by the spolia- 
tion;^ and should he attempt to make use of the document 
in its corrupted state, or to offer parol proof of its contents 
when it has been destroyed, the evidence will be rejected, un- 
til the destruction or mutilation be satisfactorily explained;^ 
or, should the document be received in evidence, then, among 

2 See McLain v. Com. 99 Pa. v. M'Pike, 3 Cush. 181, 50 Am. 

86. Dec. 727 ; State v. Dineen, 10 Minn. 

^ State V. Gritzner, 134 Mo. 512, 407, Gil. 325; State v. King, 86 N. 

36 S. W. 39. C. 603; People v. Cornetti, 92 N. 

See Louisville R. Co. v. Com. Y. 85; State v. Coleman, 20 S. C. 

130 Ky. 738, 132 Am. St. Rep. 408, 441 ; supra, § 135. 

114 S. W. 343; United States v. ^Bott v. Wood, 56 Miss. 136. 

Breese, 173 Fed. 402. ^ Riser v. State, 13 Tex. App. 

"^ State V. Moore, 12 N. H. 42; 201; State v. Grant, 74 Mo. 33. 

Perdue v. State, 2 Humph. 494; See 75 L. T. 173. 
Com. V. Belding, 13 Met. 10; Com. 



1484 EVIDENCE IN CRIMINAL CASES. [CHAP, XV. 

the several probable interpretations which might be admissible, 
that which is most unfavorable to him will be adopted.^ So. 
a spoHation of papers by a neutral vessel when captured has 
been held to give a strong inference of hostile purpose.* And. 
as will soon be more fully seen, wherever evidence is inten- 
tionally suppressed, we have the right to suppose, as a matter 
of logic, that, if produced, it would tell against the party work- 
ing the suppression.* It may also be inferred that evidence 
which a defendant on trial refuses to permit to be introduced, 
on the ground of privilege, would not have told in his favor.^ 
But this is not to be permitted to conflict with statutes pro- 
viding that there is to be no presumption against a defend- 
ant for not testifying;' nor should the rule be strained so 
as to include an inference that facts thus excluded are to be 
regarded as proved. 

There is a difference between the terms "mutilation" and 
"alteration" of documents. Alteration is applied to the act 
of a party w^ho is interested in a document, to change the ef- 
fect of the document, and it imports fraud or wrongful de- 
sign.* Spoliation is the act of one not a party to the docu- 
ment, where mutilation or even destruction does not change 
its legal effect.^ The presumptions following either act are 
against the party committing it, under the maxim. Omnia 
prcrsujiiunfitr contra spoliatorem, or that all things are pre- 

3 Post, § 749; Wilson v. Ful- v. Kohlbrccher, 22 Mo. 596; Bank 

Ham, 50 Iowa, 123. of Commerce v. Hoebcr, 8 Mo. 

* The Hunter, 1 Dodson, Adm. App. 171. 

480; The Pizarro, 2 Wheat. 227, See United States v. Spalding, 

4 L. ed. 226. 2 Mason, 478, Fed. Cas. No. 16,- 

5 Post, § 748; Wha